Would shield poultry from lawsuits, increase fines on violators

Oklahoma’s House and Senate saw a somewhat confusing one-two punch on governing large confined poultry raising operations this week, with bills co-authored by Rep. David Hardin, R-Stilwell.

One bill would increase fines on poultry regulation violators, and the other would shelter those who follow the rules from legal action. Both bills passed Thursday with “title stricken,” which means each will go to a conference committee to hash out final drafts and require passage again on both floors before the Legislature adjourns later this month.

After theme-reversing amendments, Senate Bill 1424 passed the House 67-22, with Rep. Hardin fielding questions. That same morning, House Bill 4118 passed the Senate on a 33-10 vote, with co-author Sen. Brent Howard, R-Altus, doing the talking.

Version confusion

In the preceding 48 hours, Hardin confused matters by rewriting SB1424 twice. It initially emphasized training needs for poultry operators and applicators and adjusted administrative fines, ultimately settling on a level up to $10,000 per violation. However, on Wednesday, a new version was released, which also contained the contents of HB 4118.

The changes happened so quickly that bill versions posted on the Oklahoma Legislature’s official website were out-of-date on Thursday, confusing anyone trying to follow the legislation.

On the House floor, Rep. Regina Goodwin, DTulsa, asked Hardin “for clarity,” noting she saw amendments and wondered if the bill needed additional votes. Hardin said he had already stricken the new language. “Any of my amendments that are on there, I’m rejecting,” Hardin said.

Rep. John Waldron, D-Tulsa, asked Hardin what was so objectionable about the elements of HB 4118 that Hardin had to delete them.

“The controversy was what the media portrayed that bill to do,” Hardin said. “All that bill actually did was protect people that are doing it right; the people that are following the rules the state made. The media pushed it over to a water issue, which it never was.”

However, Howard highlighted water quality in supporting HB 4118 in the Senate. He said Hardin was forwarding legislation that very morning to more severely punish “bad actors.” At the same time, HB 4118 rewarded those who followed rules that protect water quality for eastern Oklahoma rivers and lakes.

Liability protection

HB 4118 states that farms with a Nutrient Management Plan approved by the Oklahoma Department of Agriculture, Food, and Forestry “shall create a presumption that no violation … has occurred and shall insulate the poultry grower, integrator, and waste applicator from any private right of action.”

Howard said such legal protection for industry is nothing new, similar to protection against civil suits that manufacturers gain by following automotive safety standards. He said current regulations should protect those who follow the rules from legal liability. He quoted Oklahoma Title 50, Section 4, stating, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”

“This isn’t broad-ranging, this isn’t life-changing, this is a rewarding of those that follow the plan and help the recovery of all of eastern Oklahoma waters and ultimately reward those good actors and say, ‘We see what you’re doing, and we want to offer this protection,’” Howard said.

Poultry Nutrient Management Plans require poultry operators and chicken litter applicators to undergo training and annual inspections and store, handle, haul, and apply chicken waste as fertilizer according to state guidelines intended to keep excess nitrogen and phosphorus out of public waters.

Since 2005, the phosphorus and eutrophication of the Illinois River watershed and Lake Tenkiller have been the subject of a lawsuit between the State of Oklahoma and the poultry industry. The City of Tulsa sued poultry growers and settled on guidelines designed to protect the Spavinaw watershed.

Enforcement issues Critics say enforcement is weak, so poultry operations–many of which raise hundreds of thousands of birds annually for corporations like Simmons Foods and Tyson Foods–have damaged neighboring properties regardless of their Nutrient Management Plan status.

Tulsa attorney David Page said he has several landowner clients in Hardin’s district and is told his lawsuits at least partly inspired the legislation. Hardin, however, publicly cites unnamed legal threats to family farms from national groups filing frivolous suits.

Page said he has not heard of a farm shut down or heavily fined for non-compliance over a Nutrient Management Plan in his many years as an advocate. Problems created for his clients stretch beyond the basic waste-handling guidelines addressed in the plans, however.

Agriculture Environmental Management Services oversees poultry enforcement and other livestock activities. Monthly Board of Agriculture meeting packets on the agency’s website show 65 “complaint or compliance follow-ups” related to poultry activities in Fiscal 2023 and 68 as of March 31 for Fiscal 2024, which ends June 30. Individual fines listed for the past several months under AEMS mostly fall in the $100 to $300 range. AEMS oversees 541 registered poultry operations and nearly 300 private or commercial licensed poultry waste applicators.

“In these people’s minds, there is no such thing as being out of compliance,” Page said. “Anyone signing on to this bill shows a lack of respect for private property rights. It’s a free pass for big poultry operators to trample on the rights of their neighbors.”

Rep. Hardin’s office did not return a phone message left Thursday requesting clarification on the bills.

Objectors line up

The Cherokee Nation, the City of Tulsa, the City of Locust Grove, and numerous conservation groups have passed resolutions or issued public statements opposed to HB 4118.

City of Tulsa Water and Sewer Department Director Eric Lee said the bill’s allowance for revision of management plans to correct waste issues raised a flag that the plans might not be adequate in the first place. He said the ability to sue for damages also remains essential.

“Nobody wants to see frivolous lawsuits against someone who wants to do the right thing. Still, the City would want the option to take action if there is a bad actor. We don’t want that option taken away,” he said.

Cherokee Nation Principal Chief Chuck Hoskins said the Nation strongly supports farmers but added the bill has little to do with family farms and “offers safe harbor for corporate interests.”

“On the surface, it appears to support farms that, if they follow a set of rules, they’re not a problem,” he said. “But the agency tasked with enforcement is underfunded, understaffed, and not up to the task.”

Hoskins said the Department of Agriculture can’t be the state’s only backstop when problems arise.

“There are a range of harms that can come from any industry, and part of the way that is addressed is in civil courts from time to time,” Hoskins said.

The Oklahoma Ecology Project is a nonprofit dedicated to in-depth reporting on Oklahoma’s conservation and environmental issues. Learn more at okecology.org