Alternatives & Consequences:
Arkansas & Oklahoma:
Legal and Policy Backdrop For
Water Quality Situation
An Assessment of the Situation
& Discussion of the Roles for
Extension/Land Grant
Professionals
Assessment: Judicial Backdrop

What does litigation do?

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Involves specific claims between specific parties
We’re talking multi-jurisdictional litigation
here – we’re also talking water quality
issues
Look back before look forward

Early series of cases involving multiple states

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Missouri v. Illinois (1901) & (1906)
Court: should use extreme caution in transboundary pollution matters since these matters
speak toward a legislative solution as opposed to
a judicial solution
Established a federal common law of nuisance to
govern interstate water pollution
2
Judicial backdrop

Additional multi-jurisdictional water pollution
cases:

Georgia v. Tennessee Copper Co. (1907)

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Followed the principles of the Missouri v. Illinois
case
Ultimate remedy was granting an injunction against
pollution in one state causing problems in another
New York v. New Jersey – three decisions between
1921 & 1931

All cases involved trans-boundary pollution and
applied Missouri v. Illinois principles
3
Cases Decided Post-CWA

Clean Water Act passed
 Illinois v. City of Milwaukee (1972)


Federal common law of nuisance is applicable to
interstate water pollution cases
Milwaukee v. Illinois (1981) (Milwaukee II)
Clean Water Act was intended to
comprehensively address water pollution
 Clean Water Act preempted federal common
law

4
Post-CWA cases

International Paper Company v. Ouellette
(1987)
State Law at the source of the pollution
must apply
 CWA principles would be frustrated if the
law of the receiving state could apply to
discharges from the source state
 Common law of the downstream state is
preempted by the CWA


Then came Oklahoma v. Arkansas
5
Oklahoma - Arkansas

Oklahoma sued Arkansas – early 1980s

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City of Fayetteville – half its effluent was going
into the Illinois River, half into the White River
EPA had granted a permit to Fayetteville
controlling its effluent discharge
Illinois River is an Ok (state) designated Scenic
River
Oklahoma adopted water quality standards that
wouldn’t be met by Fayetteville
Oklahoma sued Arkansas – asserting that the
actions of Fayetteville would harm the Illinois
River & that OK water quality standards should
apply
6
Oklahoma – Arkansas

Tenth Circuit –
 CWA required that the law of neither state
applied and that no state could impose its
standards on another state
Appeal to the U.S. Supreme Court

1992 Supreme Court decision

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upheld the “federal character” of Oklahoma’s
EPA-approved federal water quality standards
water quality standards of the downstream state
must be implemented by the upstream state
7
Post-Arkansas v. Oklahoma

City of Albuquerque v. Browner
(1996)

Water quality standards of the
downstream Tribe must be implemented
by the upstream state
8
Oklahoma - Arkansas

During briefing and argument of the original
OK/AR case, what else was happening on the
water and agricultural front?

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1988 & 1991 – OK legislature relaxed restrictions on
corporate farming to address economic development
needs in western OK
Tax incentives, state grant funds and easing of
regulatory and statutory restrictions were put in
place to encourage agricultural development
The relaxed restrictions and incentives were in
response to the needs of the state following a
devastating oil bust and agricultural bust period
Similar activities occurring in other states


Encourage agricultural growth
Respond to goals of “efficiency” and “economic
returns”
9
Oklahoma – Arkansas
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The “state of regulation” regarding CAFOs was
voluntary and incentive-based
Poultry industry was growing in AR and eastern
OK, and in other areas of the U.S.
1993 – OK law again relaxed restrictions on
corporate farming enterprises & increased
protections against nuisance suits for CAFO
operations
1991 to 1997- increase in hog numbers from
200,000 to 1.64 million
Increase in community, citizen & legislative concern
over water quality issues related to CAFO increase
10
Oklahoma – Arkansas

1997 – OK policy activities regarding CAFOs

Executive Order 97-07 created Governor’s Task
Force on Animal Waste and Water Quality

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Final recommendations & report issued called for
increased scrutiny
1997 – OK HJR 1093 – moratorium on
hog farms
AR/OK River Compact commission
(created after AR/OK litigation adopted
goal of 40% reduction of total
phosphorous in Illinois watershed
11
Oklahoma – Arkansas

1998 – OK SB 1170 (poultry) – most
stringent bill of its kind at the time
 Registration of growers
 Certification of applicators
 Restrictions on land application in
vulnerable watersheds
 Compliance inspections
 Mandatory education & training
 Animal waste management plans
 Integrator funding of education
12
Oklahoma – Arkansas

1998 – OK SB 1175 (swine)
 Increased
setback distances
 Odor abatement plans
 Mandatory education and training in
waste management
 Gave landowners legal standing to
challenge proposed CAFOs
 Fees for regulation
 Monitoring wells and liner retrofitting
 Liability for waste
13
Oklahoma – Arkansas

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During this time period, Arkansas had Reg 5
in place that addressed CAFO waste
management issues – but did not control dry
litter
Arkansas was the only state in Region VI
EPA that was not under a CAFO NPDES
General Permit (1993) that was designed to
address permitting issues and waste
management
NWA was experiencing record population
growth and development – continually
ranked as one of the top 10 places to live
1997 – 2001 – OK/AR discussions began and
continued spurred by the City of Tulsa
14
Most Recent Litigation involving Oklahoma
& Arkansas – City of Tulsa v. Tyson

City of Tulsa v. Tyson, et al (filed December
2001)

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water quality issues relating to city’s water
source
Lake Eucha and Oologah are drinking water
sources for the city of Tulsa
March, 2003 – Order on preliminary
motions

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Phosphates in litter are a CERCLA hazardous
substance
Companies are vicariously liable for state law
trespass or nuisance created by growers
15
Litigation - Tulsa


Settlement discussions followed & Order of
March 2003 vacated – Agreement reached
7/16/03
Purpose to resolve case without further
litigation

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“ensure that nutrient management protocols
are used in the (Eucha-Spavinaw) Watershed
to reduce the risk of harm to the city of Tulsa’s
water supply”
Harm due to land application of nutrients and
the City of Decatur’s WWTP discharge
16
Litigation - Tulsa
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Recognized right of Poultry companies and their
growers to continue to conduct poultry operations in
the watershed within protocols
Recognized importance of clean lakes, safe drinking
water and a viable poultry industry to the economies
of NE OK and NWA
Settlement required appointment of Special Master
and appointment of Executive Director of nonprofit
created by Poultry Defendants
 SM and Executive Director of nonprofit would
work together, along with a watershed monitoring
team, to ensure that NMPs are issued with PI
number for each operation within the ESW
Moratorium on land application of litter in the ESW
17
Litigation - Tulsa

Settlement applies to the Poultry Defendant
companies and their contract grower farms (who are
not parties to the litigation) and to any field using
company or contract grower litter

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Agreement to terminate within 4 years
PIndex to be developed and submitted by 1/1/04
Team of scientists - OSU and UA – designated as
the PI Team (not parties to the litigation)

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Responsible for development of phosphorous riskbased index
PI will control terms and conditions under which
nutrients can be land applied in the watershed
PI must achieve least amount of total P loading
reasonably attainable from each application site
(farm) from all sources of phosphorus while meeting
agronomic requirements for growth of grasses, crops
and other desirable plant life
18
Litigation - Tulsa

PI Team couldn’t reach agreement on a
final PI

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PPM calculator – OSU
ESPI 1.0 - UA
Court to determine an appropriate PI
under the settlement agreement
Poultry companies submitted proposed PI
method; Tulsa submitted a proposed PI
tool
Evidentiary hearing on 2/9/04 regarding
the separate PI proposals
19
Litigation - Tulsa
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Court found that neither Univ. proposal complied
completely with the Settlement Agreement
Established a trial implementation period, nominally
until 12/31/04 – court approved its own PI (the AR
version as modified) for utilization
No nutrients may be applied if soil test phosphorous
level is 300 mg/kg or greater

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Soil samples collected at determined depths (0” - 4”)
Litter samples analyzed according to court-determined
methods
Eligible BMPs must adhere to NRCS Conservation
practice standards for water quality
Other NRCS-recommended limitations on land
application apply to each site
20
Litigation - Tulsa
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Total amount of litter that can be applied in ESW
from all sources covered by the Moratorium cannot
exceed 2/3 of the amount of litter produced annually
within ESW by the Poultry Defendants and their
Growers
As NMPs are written the SM maintains a cumulative
record of litter amounts allowed in the ESW
SM and Watershed Monitoring Team required to run
both models/tools for each application site
UA and OSU – ordered to continue collaboration
 Research and field-study programs in ESW re:
edge-of-field issues
 Utilize resulting data to further refine, calibrate
and validate the OSU predictive model
 Develop a joint quantitative PI in collaboration
with the SM
21
Litigation - Tulsa
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SM and Executive Director of non-profit are required
to make reasonable attempts to transport litter out
of the ESW so goals not exceeded
OSU, UofA, SM and ED ordered to report to the
court within 6 months
Hearing/reporting – September 2004
Court heard updates/evidence and determined that
continued work should be done – earlier order
indicates that if no joint quantitative PI is developed
court will determine an appropriate PI based on
results found during the trial period
22
Litigation - Tulsa

Role of a Litter Bank
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Physical and Non-physical
Must organize the litter in order to utilize the
litter
Potential for use in alternative enterprises,
some energy related, some not
LG/Ext leadership in organizing,
conceptualizing, obtaining community support,
engaging financial support and providing
ongoing research support for creation
Sustainability?
23
Other Litigation – Grand Lake

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Grand Lake property owners sued Tyson Foods
 Alleged the company was polluting the area from
releases from processing plants
 2003 – lawsuit amended to include Simmons and
Peterson companies
2003 – Defendants attorneys submitted motion to
allow expansion of suit regarding over 11,000
additional Defendants allegedly causing water quality
problems around Grand Lake
Additional defendants :
 Ottawa Co. Rural Water & Sewer District No. 1
 Shangri La Resort (and golf course)
 Residents and Homeowners individually and in
their associations
 Grand Lake Public Works Authority
 Others
24
Litigation – Grand Lake
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Still in pre-trial stages – hearings on discovery
disputes
Class of plaintiffs certified – two classes
 Property owners - who had damages at the time
of the filing
 Current owners - damages as of the time of class
certification
Certification decision is before the Court of Appeals
Could be months before outcomes known
If class denied certification, could be appealed to
U.S. Supreme Court
Those producers growing for Tyson, Simmons &
Peterson in the Grand Lake area could be affected
by outcome at trial or settlements reached
25
Other Litigation – Been v. OK Foods


Been and others are contract growers for OK Foods
 Seeking determination that the contracts under
which they grow are unconscionable
 Seeking rulings that they are in fact employees of
the company
 Testing a previous AG opinion opining that under
certain circumstances, contract poultry growers
could be deemed “employees” of their company
Case still in pre-trial stages
 New Judge assigned to case
 Plaintiffs certified as a class
26
Litigation - Been

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Recent rulings against the growers
 contracts were not unconscionable – ruled
contracts were between sophisticated
parties
 contracts were equal in terms of risk and
reward
Packers & Stockyards Act claims remain
 Tournament system
 Unfair acts
Pre-trial motions remain to be filed
March 2005 trial date set
27
On the State Regulatory Front:
Regulations - Adoption of state standards


2001 – Okla. Water Resources Board
recommended numerical criterion as a part
of the Oklahoma Water Quality Standards
Anti-degradation Policy
March 2002 – OWRB adopted a numeric
standard
 Total P concentration cannot exceed
0.037 ppm– to be fully implemented in
10 years
28
Meeting the standards

Meeting the standards

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Fayetteville currently meets
Fayetteville, Springdale, Rogers, Bentonville
and Siloam Springs have committed to OK’s
request for cleaner discharges
Standard submitted to EPA for approval in
2002
2003 – EPA was sent a citizen’s letter
giving it 60 days to approve the standard
or be sued
December 2003 – EPA approved the
0.037 standard
29
Potential for additional litigation

AG is threatening lawsuit by State
of Oklahoma v. entire poultry
industry
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To protect the IRW
And other watersheds?
Will other defendants be contemplated?
Current offer to Settle offered by
the Poultry Industry to the AG
30
Additional litigation

Settlement offer
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Continued work on developing science-based
joint nutrient index relating to land application
Development of contract grower plans based on
joint index
Provision of litter management alternatives,
such as transportation out of the watershed,
new energy or heat recovery technology,
composting and processing into organic fertilizer
Reduction of litter application
Supplemental environmental projects
Creation and maintenance of conservation
easements
Reporting
31
Changes in AR state standards

AR legislature adopted new laws in 2003
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Registration of producers
Certification of nutrient applicators
Nutrient application plans
Applying nutrients on 2.5 acres or more must
be in compliance with a plan
ASWCC is conducting hearings that will
lead to adoption of regulations
interpreting those standards
ADEQ is also in process of conducting
hearings on new CAFO standards –
regarding dry nutrients regulation
32
Nutrient Surplus Areas
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Arkansas’ state legislature has created
Nutrient Surplus Areas throughout the NWA
region
Enhanced scrutiny for nutrient application
throughout those regions
Different regulations apply to nutrient issues
in those areas
Storm water regional community education
groups now exist in the region
33
Options for producers
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Is producer in the ESW or the IRW? What
if they grow in one state and transport/land
apply in another?
Federal laws & regulations
Oklahoma law and regulations
Maybe a moratorium if in OK
Nutrient surplus area in AR
Contracts with company
Municipalities in growing region
Litigation – member of class? Affected by
case? Party?
34
Role of Extension/Land Grant
Professionals
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Public Issues Analysis
Do Extension/Land Grant Professionals
Get Involved?
Let’s walk through what we know…
Multiple stakeholders
Public Resources
Decisions involved laws, regs, policies,
public resource use
35
Role of Extension/Land Grant
Professionals
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Complex issues
Passion, emotion
Who makes decision? Group?
Municipalities? Public Body?
Multiple Jurisdictions involved
Decisions will affect multitude of people
Started as private issue/became public
Media plays huge role
Everything hinges on POWER
36
Role of Extension/Land Grant
Professionals
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Limited early public education role
No registration of poultry contract
growers or companies – no educational
component in one state; advanced
educational component in another – but
seen as “helper” not “regulator”
“Spiral of Unmanaged Conflict” – where
are we?


Definitely at the Top of the Spiral!
So, do we get involved?
37
Role of Extension/Land Grant
Professionals

Attitudes toward the conflict (re:
parties)
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
OK AG – win at all costs – education
has no impact
OK AG relationship with the companies
and former Tulsa Mayor relationship
with companies – BAD – no opportunity
for education or collaboration
Lack of mutual respect
38
Role of Extension/Land Grant
Professionals

What about “teachable moments” or
possibilities for collaborative dialogue
between/among those who are NOT
parties to the litigation but who ARE
AFFECTED?

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
Contract growers
Citizens of both states
What about conflict resolution?

OSU has Institute for Conflict Resolution but
they are not involved in this ongoing issue
39
Role of Extension/Land Grant
Professionals

Role of Ext/LG Professionals in the
litigation
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PI Team – teams at both OSU and UofA
Litter bank
Called upon to provide education and
update to those affected by the
litigation (contract growers and
lenders)
Multiple Research projects underway
40
Role of Extension/Land Grant
Professionals

Ext/LG professionals appearing before
court as experts/court ordered team
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Defend existing models
Create new models
Costs of research – who pays
Places them in new role vis-à-vis their existing
clientele
Expert, Convener, Neutral, Mediator,
Moderator? Does one role preclude all other
roles? Does one role by one professional
preclude other roles within same institution?
If entity is involved in the litigation, is the
entity no longer neutral?
41
Role of Extension/Land Grant
Professionals

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What about Ext/LG records – are they
public? Can they be discovered?
What about Ext/LG professionals’
advancement & promotion?
What about Ext/LG professionals who
have patented technology? What about
personal financial interests conflicting
with professional judgment? What
happens if there is a collision of these
interests?
42
Role of Extension/Land Grant
Professionals

Should we not get involved?

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In any capacity?
What about our continuing
responsibility to provide education?
Are we the only conceivable “neutral”?
If so, does this override any indications
that would require non-involvement?
 Clarification of the issues

43
Conclusion
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Poster Children for Dysfunction
Dueling Policies
One-upsmanship
Courts and AG office making policy
Lack of collaboration
Cooperative compliance is a possibility
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Requires regional group of cooperators
Requires intense public education efforts
44
Conclusion

Rural economic issues
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
What will happen to historically
economically challenged regions if ag
infrastructure vanishes?
Do we have other alternatives for rural
economic stability in the wings?
45
Conclusion

Role of Tribal Nations

Have clearly identified right to the
natural resources in question – issues
clearly decided by prior litigation
Arkansas River – Cherokee, Choctaw &
Chickasaw
 Cherokee Nation – leased ESW to Tulsa
 EPA designated as a state status

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Do they want to be involved?
In what way?
46
Conclusion

Post-Litigation Repair (After the Storm)
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Re-establishment of relationships
Engagement in meaningful education
Shared vision?
Shattered by ongoing adversarial activity
Encouragement of sustainable solutions to
problems
Rural entrepreneurial activity in support of
those solutions
Channeling crisis-oriented research into
ongoing body of work
47
Conclusion

Post-Litigation Repair
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Multi-state research and extension efforts
 Joint education
 Joint research
Historically strong connection between
institutions – rebuilding
Ongoing needs of alternative enterprises
Ongoing need for dialogue and citizen
involvement in the issues
48
Conclusion

My comments:


It is our responsibility as LG/Ext
professionals to remember our mission
Need protocol and methodology
addressing our involvement postlitigation
49
Contact Information

Janie Simms Hipp, J.D., LL.M.


Assistant Professor Agricultural Law
Natural Resources Regulatory Policy
217 AA AEAB
 University of Arkansas
 Fayetteville, AR 72701
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
479-575-6935
479-575-5306 (fax)
Jhipp@uark.edu
50