‘I Didn’t Think They Would Agree to Anything’
Ben Felder, Investigate Midwest
Oklahoma has blamed the chicken industry for polluting one of the state’s greatest attractions, the Illinois River. As a two-decade lawsuit is finally on the cusp of resolution, newly uncovered records show the private negotiations.
January 8, 2024
- In private, poultry companies blamed chicken farmers for pollution, records show. In public, they said they wanted to protect local farms.
- During negotiations, poultry companies made offers they knew the state would not accept.
- The Oklahoma Farm Bureau attacked the state's attorney general over the lawsuit with the backing of poultry companies.
As the calendar turned to 2005, Oklahoma Attorney General Drew Edmondson grew more frustrated each time he opened the newspaper or turned on the radio.
For nearly four years, his office had been meeting with representatives of several large poultry companies, including Tyson Foods, in hopes of reaching an agreement to rein in the pollution from chicken litter in the Illinois River Watershed.
But Edmondson believed those same companies were also funding ads accusing him of trying to put small chicken farms out of business, leading to calls into his office from worried chicken farmers and their representatives in the state Legislature.
“(Edmondson) is getting ready to sue our industry,” said a chicken farmer in a newspaper advertisement published by the Oklahoma Farm Bureau. “This could put farmers like me and my dad out of business and drive 12,000 jobs out of our state.”
Another meeting between the attorney general’s office and poultry company representatives was coming up. But after three years of negotiations and now the ads attacking him, Edmondson decided it would be pointless and ordered his staff to cancel the meeting.
“While fronted by the Oklahoma Farm Bureau, I have no doubt personally that these efforts … (are) endorsed, supported, financed and orchestrated by your clients,” stated a Jan. 5, 2005, letter from Edmondson’s office to attorneys for several poultry companies. “I cannot see how it is in the State’s interest to continue protracted negotiations while fighting reargued actions in the media and halls of the Legislature.”
Six months later, Edmondson, a Democrat, filed a lawsuit against several poultry companies, including Tyson Foods, Cargill, Cal-Maine Foods and Simmons Foods, blaming them for causing increased levels of phosphorus, nitrogen and E. coli in the streams and lakes of the watershed — a source of drinking water for more than a dozen towns and a popular recreation spot in eastern Oklahoma.
Nearly 20 years later, that lawsuit is still unresolved. However, a judge ruled last year in favor of the state and could issue a final order in the coming months to impose new limits on poultry companies operating within the Illinois River Watershed.
As the lawsuit enters a possible final phase, Investigate Midwest reviewed thousands of documents from the attorney general’s office, now kept in the Oklahoma State Archives. The records shed new light and provide a better understanding of the negotiations that precipitated one of the longest legal cases in state history. The documents, some of which have not been previously reported, show:
•Poultry companies publicly said they wanted to protect local farmers while at the same time blaming those farmers for litter pollution during private negotiations with the state.
•Before the state filed its lawsuit, the poultry companies made settlement offers they knew Edmondson’s office would not accept, prolonging negotiations while publicly stating the attorney general was unwilling to compromise.
•The Oklahoma Farm Bureau, financially backed by some poultry companies and with some of its leaders working as contract poultry farmers, attacked Edmondson over his pursuit of stricter standards on chicken litter removal.
Last year, a federal judge ordered the companies to hold settlement negotiations with the state in an effort to come up with new standards for controlling chicken litter-caused pollution. Those negotiations ended without an agreement.
Edmondson is no longer involved in the case and did not participate in last year’s settlement meetings. But when negotiations ended without an agreement, the former attorney general said he wasn’t surprised based on his original work with the companies.
“I didn’t think they would agree to anything, just keep trying to delay this thing,” Edmondson said. “The (companies) aren’t going to agree to anything. They won’t change their ways unless they are paid to or made to.”
Tyson Foods and Simmons Foods declined to comment on the lawsuit but directed questions to the Poultry Federation, an advocacy group with offices in Arkansas and Oklahoma.
“Oklahoma’s farmers and ranchers, and the protein industry that partners with them to deliver affordable food to America, have consistently complied with and supported the development of the nutrient management regulations that have been in place for decades,” Marvin Childers, president of the Poultry Federation said in an emailed statement. “The companies targeted by this lawsuit, filed more than 18 years ago, will continue to drive adherence to regulatory programs with nutrient plans written by experts, ensure the protection of clean water for generations to come, and support the ability of farmers to feed the nation while protecting their livelihoods and their communities.”
Negotiations began in 2001 to address chicken litter-caused water pollution
Described by The Oklahoman newspaper in 1974 as “the most beautiful waterway in the state,” the Illinois River and Lake Tenkiller had long been popular tourist destinations.
Chicken farms in the watershed weren’t new but as industrial poultry farming took off in the 1990s and early 2000s, residents began to notice changes to the once-clear rivers and lakes.
Algae formed on rocks along the riverbed and at the surface, preventing oxygen from getting into the water. Homes with groundwater wells found their turbidity rates — how cloudy water appears — significantly above the EPA’s recommended levels for consumption.
Companies like Tyson and Simmons would contract with local farms to raise thousands of chickens at a time, often inside long steel buildings. The chicken litter — either from the farm or, more often, from the litter sold to area crop farms as fertilizer — began seeping into nearby waters.
At least 18 utilities use drinking water from the Illinois River Watershed, and the state believed chicken litter runoff had increased the risk of pathogens, leading to higher treatment costs.
When Edmondson first began meeting with the poultry companies in 2001, he expressed a sense of urgency to significantly reduce water pollution caused by the growing poultry industry, believing the state was nearing an irreversible tipping point. After a couple of years, Edmondson didn’t believe much progress had been made.
Tyson and the other poultry companies “seem to misunderstand the gravity of the situation in our Scenic Rivers,” Edmondson wrote on Sept. 18, 2003, in rejecting a settlement proposal from the companies.
Since then, the number of chickens raised annually in the state, most in eastern Oklahoma, has more than doubled, topping 200 million, based on the licenses issued by the Oklahoma Department of Agriculture.
Phosphorus limit was one of several disputes between companies and the state
During the summer of 2004, after more than a dozen meetings between the attorney general’s office and the poultry companies, Tyson Foods submitted a settlement proposal it said addressed the state’s concerns over “excess phosphorus” in eastern Oklahoma.
Kelly Burch, an assistant attorney general involved in the negotiations, reviewed the proposal and told Edmondson, “(the companies) continue to be unwilling to accept our terms,” according to a memo she wrote on July 22, 2004.
One issue was how to limit litter pollution from the thousands of individual farms that contracted with Tyson and other companies to raise chickens. The companies did not own the farms, just the birds, and they were unwilling to restrict what the farms did with their litter.
“A key deficiency in the proposal is that it portrays the relationship between the integrator and the grower as independent and does not commit that the waste generated at the grow operations will be managed in accordance with any agreement,” Burch wrote in her memo. “Rather, (the companies) propose to use their ‘best efforts’ to encourage voluntary implementation … at their grower operations.”
In September 2004, Tyson submitted a revised settlement offer that proposed shipping more waste out of the watershed region. It also agreed to cap litter fertilizer application at 120 pounds of phosphorus per acre, a standard nearly twice as high as the 65 pounds per acre the state had asked for. (During the 2009 trial, a scientist from Oklahoma State University testified that 65 pounds of phosphorus per acre was enough to fertilize crops without polluting nearby waters.)
But one of the most significant sticking points was how much the companies should pay.
As early as 2002, when negotiations began, the attorney general’s office calculated $23.3 million in possible fines and lake restoration costs.
“This figure could be multiplied by 3 to address all of the scenic river watersheds,” Burch wrote in response, according to an internal memo.
Farm Bureau claimed poultry case would hurt small chicken farmers
The Oklahoma Farm Bureau wanted a seat at the table.
As negotiations between Edmondson and the poultry companies continued in late 2004, the state’s largest agriculture lobbying organization asked to be included.
But Edmondson rejected the request.
Within weeks, the farm bureau began running commercials and advertisements criticizing Edmondson and urging the agriculture community to fight back.
“At the state convention in November, our membership passed a resolution that poultry growers should retain the option of keeping their litter,” Jeramy Rich, the organization’s vice president of public policy, wrote in a Jan. 20, 2005, letter to members titled “Your Immediate Action Requested.”
“Poultry growers are concerned that a deal will be struck with the companies to take control of the litter away from them, which will negatively impact their bottom lines,” continued the letter, which also included phone numbers to state House and Senate leaders.
The farm bureau also began running commercials featuring Randy Allen, a Delaware County poultry farmer, who claimed Edmondson was risking his livelihood.
“On behalf of my family and the many other small poultry farmers in Oklahoma, please contact your legislators and the Oklahoma Attorney General today,” Allen said.
At the time, Allen’s father, Gene Allen, was the farm bureau’s Delaware County chapter president. According to documents Edmondson’s office collected on the commercials, the family’s poultry farm was near two streams.
“The property is a specific concern due to the proximity of those streams,” the document stated.
The Allen family could not be reached for comment.
Edmondson rebuked the farm bureau’s claims by saying he was only targeting the large poultry corporations and that any new regulations on individual farms would have to be paid by the companies, not the farmers.
But the farm bureau, which received financial support from the poultry companies, deflected blame away from the companies.
“Individual growers raise chickens for the poultry companies and those individuals, not the companies bear responsibility for the application of litter,” stated a farm bureau press release issued on Dec. 1, 2004.
The Oklahoma Farm Bureau also told poultry farmers they were at risk of suffering the same fate as the tobacco industry, which was significantly disrupted after settling for billions in state lawsuits in 1998. In the same Jan. 3, 2005, news release, the farm bureau pointed out that Edmondson had hired the South Carolina law firm that helped negotiate the tobacco company settlements several years earlier.
“It appears the attorney general is only interested in the large monetary settlement and the accompanying political notoriety,” the farm bureau’s president at the time, Steve Kouplen, wrote.
Current leaders with the Oklahoma Farm Bureau defended the organization’s work nearly 20 years ago as an effort to protect “our members against government overreach and advocating for a regulatory process that is fair, transparent and fact-based,” according to a statement from Rachel Havens, a spokesperson for the farm bureau.
Havens also said that water quality in Oklahoma’s Illinois River Watershed has consistently improved over the last two decades, “thanks in large part to the voluntary conservation efforts of Oklahoma poultry producers.”
Phosphorus rates have declined in some parts of the Illinois River Watershed over the last 20 years but a report in October showed rates more than twice the state’s limit for scenic rivers.
When fighting Edmondson in 2005, the farm bureau also claimed a lawsuit could result in the closure of poultry companies that contracted with local farmers. Large companies like Tyson could have a greater monopoly, the organization told farmers.
Edmondson addressed this concern in an email exchange with an east Oklahoma newspaper editor, pointing to the recent tobacco settlements to combat the claims.
The closure of poultry companies “is a valid consideration but not likely,” Edmondson wrote in an email on Sept. 21, 2004, a copy of which is in the state archives. “That was predicted at the conclusion of the tobacco litigation but we have more small tobacco companies today than existed prior to 1998. … Once the rules are established and the financial uncertainty is resolved we may actually see the industry stronger and more diverse than ever.”
On June 13, 2005, Edmondson filed his lawsuit but deferred summons to the poultry companies to “see if continued talks would have promise for settlement,” an internal timeline created by the attorney general’s office stated.
Two more “confidential mediation sessions” were held over the next two months, according to the document.
On Aug. 19, 2005, Edmondson began serving the companies and moved forward with the lawsuit.
State is now asking a judge to impose new pollution controls on poultry companies
Eighteen years after the state and poultry companies ended settlement talks without an agreement, the two sides were brought back to the negotiating table in 2023 following a ruling in favor of the state. But as had been the case nearly 20 years ago, an agreement couldn’t be reached.
In October, Tyson and the other operators filed a motion to dismiss.
If the pollution in the Illinois River Watershed was such a crisis, the companies argued, why hadn’t the state asked the court to rule sooner?
“Six Oklahoma Attorneys General have held that office (since Edmondson), but despite bearing the burden of proof, not one of them asked this Court to rule or sought relief from the Tenth Circuit,” Tyson’s attorney wrote in the motion to dismiss.
While the state has had six attorneys general since Edmondson, many of the tenures were too short to take any action on the case. One of the six served on an interim basis for three days and another for less than two months.
Drummond, the sixth attorney general since Edmondson, was in office for less than seven weeks before Judge Gregory Frizzell’s order was issued on Feb. 22, 2023.
Scott Pruitt, who was attorney general for nearly half of the 12 years since Edmondson left office, may have been in the best position to push the court for a ruling. But Pruitt, who received over $40,000 in donations from more than 25 executives from the poultry companies named in the state’s lawsuit, publicly criticized the lawsuit after being elected.
“Regulation through litigation is wrong in my view,” Pruitt, a Republican, said in 2015 when discussing Edmonson’s lawsuit. “That was not a decision my office made. It was a case we inherited.”
In its response to Tyson’s motion to dismiss, the state said the length of time since the trial concluded should not prevent the judge from issuing an order, especially since the poultry companies offered “no suggestion … that their poultry waste practices have changed such that they no longer pollute the (Illinois River Watershed).”
Drummond, the current attorney general, is asking the federal judge to impose a chicken litter fertilizer limit of 65 pounds of phosphorus per acre, the same threshold Edmondson asked the companies to meet 20 years ago.
Drummond also wants the judge to appoint a “master” to oversee pollution remediation programs throughout the watershed, including the creation of buffer strips along waterways, increased treatment of drinking water and sediment removal from Lake Tenkiller.
While the poultry companies continue to fight the lawsuit, even after the unfavorable ruling, they appear prepared to pay some amount as part of a court order.
Cal-Maine Foods told its investors last year, “management believes there is a reasonable possibility of a material loss from the case,” according to the company’s quarterly report filed on Oct. 3 with the U.S. Securities and Exchange Commission.
But even Frizzell, the federal judge who may issue a final order within months, has acknowledged the likelihood of further delays, including the companies bringing an appeal to the U.S Court of Appeals for the Tenth Circuit, where decisions can take multiple years.
“I’ll certainly do my best if it comes to that to render a fair and just adjudication,” Frizzell told lawyers for the state and poultry companies during a March hearing when asked about the potential of settlement talks coming to an impasse. “Unfortunately, that will likely guarantee years of future litigation and money spent on attorneys rather than on remediation and the work that needs to be done here.”
Kirkpatrick Policy Group is a non-partisan, independent, 501(c)(4) nonprofit organization established in 2017 to identify, support, and advocate for positions on issues affecting all Oklahomans, including concern for the arts and arts education, animals, women’s reproductive health, and protecting the state’s initiative and referendum process. Improving the quality of life for Oklahomans is KPG’s primary vision, seeking to accomplish this through its values of collaboration, respect, education, and stewardship.