Mention an outdoor getaway in Oklahoma, and more often than not, recreation on the Illinois River or Lake Tenkiller — described by The Oklahoman in 1974 as “the most beautiful waterway in the state” — probably tops most lists.

But keeping that waterway beautiful has been — and continues to be — a protracted and frustrating legal process.

And while poultry companies were found liable 11 months ago for polluting the vast, two-state Illinois River Watershed, remedies to the state ordered in the federal lawsuit judgment are now 10 months past due.

And the poultry companies, including processing giant Tyson Foods, are now trying to get the judgment dismissed, which would negate their liability and any requirement for relief to the state and the 25,000-square-mile watershed.

While poultry companies would like to avoid any culpability for increased levels of nitrogen, phosphorus and even E. Coli in waterways within the watershed, the state is pressing foraccountability—ifnothing more than the courts now imposing stringent pollution controls.

Now in its 23rd year since the state first began its pursuit of reform as well as a resolution, is it now more likely that stall tactics and litigious delays by the poultry industry and its allies have taken their toll on efforts to return the Illinois River and Lake Tenkiller to their oncepristine condition?

How it all started

While chicken farms in northeastern Oklahoma and northwestern Arkansas are not new to the watershed area, raising poultry flourished in the 1990s into the 2000s, thanks to burgeoning production contracts between local farms and companies like Tyson FoodsandSimmonsFoods.

But the increased chicken population and newfound profits came at a cost: Lotsandlotsofchickenlitter produced on the farms and used by area crop farmers as fertilizer, creating pollutants that seep into the groundwater.

That’s when residents near Lake Tenkiller and the Illinois River started noticing the once-clear waters were no longer so clear.

Importantly, those scenic waterwaysarethesourcefor numerousutilitycompanies providing drinking water to the area. But runoff from chicken farms was believed to increase pollution, which increased water treatment costs.

The same pollution has occurred for homes with groundwater wells.

That’s when Oklahoma Attorney General Drew Edmondson launched the state’s push in 2001 to reduce water pollution and hold the growing poultry industry accountable.

But negotiations were laborious and fruitless. Early talks included mostly disingenuous settlement proposals by poultry companies the state could not reasonably accept.

Meanwhile, the growing pollution problem continued toward an irreversible tipping point, despite Edmondson’s urgent calls to preserve clean water.

And the problem has not gotten any better. The state chicken population has more than doubled to more than 200 million, according to the Oklahoma Department of Agriculture.

By 2004, Tyson Foods had submitted a settlement offer characterized as addressing the state’s concerns about phosphorus, but the companies were still unwilling to accept the state’s terms regarding waste management.

While a subsequent settlement proposal by Tyson agreed to cap phosphorus levels in fertilizer application, the amount was still almost twice as high as the per-acre requirement the state would accept.

Just as important in the early negotiations was the financial compensation the state expected from the companies in fines and lake restoration costs (calculated in 2002 at $23.3 million) along with rehabilitation of scenic river watersheds (projected at about $70 million).

The court of public opinion

With Edmondson and poultry companies negotiating, Oklahoma Farm Bureau, the state’s largest agriculture lobbying organization, wanted to be included in the fray.

When Edmondson, a Democrat, said no, OFB turned to the court of public opinion, running commercials and ads criticizing the state’s pursuits against the poultry industry, and claiming any agreement would negatively impact the livelihood of local chicken farmers. In addition, supporters were urged to air their grievances with state legislators and the state attorney general’s office.

The Oklahoma Farm Bureau, which receives financial support from poultry companies, perpetuated claims that Edmondson was targeting small operations rather than the large poultry corporations. In addition, the OFB likened the fate of poultry farmers to that of the 1990s’ tobacco industry, which settled for billions of dollars in state lawsuits, characterizing Edmondson as a moneygrubber and political opportunist.

According to recent reporting by Investigate Midwest, an independent and nonprofit newsroom, current leaders with the OFB defend the organization’s pursuits from almost 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,” said OFB spokesperson Rachel Havens.

Havens also maintains that water quality in the Illinois River Watershed has consistently improved over thelasttwodecades,“thanks in large part to the voluntary conservation efforts of Oklahoma poultry producers.”

While phosphorus rates have declined in some parts of the Illinois River Watershed during the past 20 years, a report by Save the Illinois River, Inc., showed rates at more than twice the state’s limit for scenic rivers.

Eighteen years after negotiations were severed without resolution, the state and poultry companies resumed talks in 2023 following a U.S. district judge’s ruling in the state’s favor. But no agreement was reached during the eight weeks set aside for the parties to approve a remedy. Instead, for those who thought the proceedings couldn’t get any weirder, Tyson et al. countered with a motion seeking to dismiss the lawsuit, despite the ruling from almost a year ago.

If the watershed was in such peril and the pollution so devastating, why had the state not pushed more aggressively for a court ruling?

“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, Investigate Midwest reported.

But only four of those six subsequent AGs served long enough to advance a court decision.

The latest, Gentner Drummond, was in the state’s top law enforcement chair when U.S. District Judge Gregory Frizzell made his ruling on Feb. 22, 2023.

In Frizzell’s decision, the poultry companies accused in a long-running federal lawsuit of polluting the Illinois River watershed were directed to negotiate an agreement with the state regarding remedies to be imposed, or the task would fall to Frizzell to render a judgment on remedies.

The long-standing lawsuit, originally filed in 2005 by Edmondson against 14 poultry companies operating within the watershed, ledtoalengthytrial13years ago, in which it was alleged that overuse of poultry waste (commonly referred to as litter) as crop fertilizer had polluted the watershed.

In his ruling, Frizzell determined that the poultry companies had “unreasonably interfered with the public’s right to the use and enjoyment of the waters” in Oklahoma, particularly the Illinois River watershed and Lake Tenkiller.

Frizzell’s ruling said the state had established its case regarding excess phosphorus in watershed waters, which is alleged to have leached into nearby streams due to over application of fertilizer on lands within the 1 million-acre watershed, usually in close proximity to poultry farms. The judge found compelling the state’s allegation that poultry waste generated by poultry farmers was the source of the phosphorus, and that the environmental damage to watershed waters was inextricably tied to poultry litter.

In his more than 200page report, Frizzell wrote “it is clear that poultry waste is a major contributor to the levels of phosphorus in the water of the [watershed],” and that the poultry companies “have done little — if anything — to provide for or ensure appropriate handling ormanagementofthe poultry waste generated by their birds at their growers houses.”

While 14 poultry companies were defendants in the original lawsuit in 2005, the number of defendants was subsequently narrowed to 11. Those remaining defendants include Tyson Foods, Tyson Poultry, Tyson Chicken, Cobb-Vantress, Cal-Maine Foods, Cargill, Cargill Turkey Production, George’s, George’s Farms, Peterson Farms and Simmons Foods.

When Frizzell’s ruling was handed down, Drummond lauded the decision as “a great and historic day for Oklahoma.”

While Edmondson was elated by the finding, he warned that any improvements in waste disposal by poultry companies are voluntary, andcouldendwithout notice.

Frizzell found in favor of the state on trespassing and public nuisance-related claims, and ordered the parties to meet and attempt to reach an agreement regarding remedies. If they could not reach an agreement, Frizzell will render a judgment on remedies, which could include injunctions, significant penalties and even banning chickens in the watershed.

In addition, the state also wants to require poultry companies to remediate the watershed, to pay to investigate remedial actions regarding the effects of poultry litter application and to payforimplementingremedial actions.

Of the six that followed Edmondson, Scott Pruitt may have been in the best position to push for a ruling. But Pruitt received more than $40,000 in donations from poultry companies named in the lawsuit, according to FollowTheMoney. com.