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Oklahoma files appeal in poultry litter case

Tulsa_Oklahoma is again hoping to stop 13 Arkansas-based poultry companies from disposing of bird waste in the Illinois River watershed.

The state's 61-page appeal of an earlier judge's ruling was filed late Monday with the 10th U.S. Circuit Court of Appeals in Denver.

Oklahoma had tried to get an injunction to halt a practice thousands of farmers have employed for decades in the 1 million-acre watershed, which occupies parts of Arkansas and Oklahoma: Taking the ammonia-reeking chicken waste - clumped bird droppings, bedding and feathers - and spreading it on their land as a low-cost fertilizer.

The injunction also could have led to similar environmental lawsuits nationwide against the industry, which produced more than 48 billion pounds of chicken in 2006.

But in September, U.S. District Judge Gregory K. Frizzell ruled that Oklahoma "has not yet met its burden of proving that bacteria in the waters" are "caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems."

Charlie Price, spokesman for Attorney General Drew Edmondson, said that ruling "contained several troubling, and we believe inaccurate, legal interpretations that we feel compelled to present to the higher court."

Jackie Cunningham, a spokeswoman for the poultry industry, said Tuesday the companies stood behind a statement they made when Oklahoma's injunction request was denied: "It's very gratifying the court gave consideration to our position in this matter and then came to the conclusion in the opinion and the order," she said.

Edmondson suggests in the latest appeal that the district court didn't offer sufficient findings or conclusions in its order supporting the refusal of the injunction.

"Simply put, the opinion and order is severely lacking in the requisite factual findings and legal analysis," Edmondson wrote, also noting in the appeal the district judge's "brief seven-page" ruling.

The attorney general also said the court was wrong to find the testimony of two expert witnesses unreliable because their work had not been peer reviewed or published.

One witness, Valerie Harwood, a microbiologist and professor at the University of South Florida, testified at the injunction hearing that she used microbial source tracking to trace a path that contamination from poultry waste travels from fields into the watershed.

The second witness, geochemist Roger Olsen, testified that he had identified a poultry-specific biological "signature."

Edmondson sued the 13 companies in 2005, accusing them of treating Oklahoma's rivers like open sewers.

Companies named in the 2005 complaint include Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George's Inc., George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.

While gathering evidence for the pollution case, which figures to go to trial later in 2009, Edmondson said the state "discovered the excessive land application of poultry waste could be a danger to public health," and argued in court for the injunction earlier this year.

Edmondson had requested the legal remedy by this year's spring rains, arguing that bacteria found the waste could pose a health threat to the 155,000 people who recreate in the river valley annually.

The Oklahoma-Arkansas region supplies roughly 2 percent of the nation's poultry, and is one of several areas nationally where the industry is most concentrated. More than 1,800 poultry houses are in the watershed, most of them in Arkansas.

Justin Juozapavicius, AP Writer © 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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