In the 20-year-old State of Oklahoma v Tyson Foods Inc. case, the docket is approaching 4,000 entries, and it takes 38 pages of single-spaced lines to list all the lawyers that are involved.
Yet the Oklahoma Secretary of Energy and Environment, Jeff Starling, himself an attorney, does not want to be represented by Attorney General Genther Drummond, but by bringing in yet another attorney, Andy Lester, to represent the Department.
Starling was named as the Energy and Environment head only last December by Oklahoma Gov. Kevin Stitt. The governor and attorney general are both Republicans.
The motion for substitution of counsel seeks to remove not only the Attorney General from continuing to represent Starling in what came to be known as the “Busload of Lawyers” case but also Oklahoma Solicitor General Garry Gaskins and a dozen other state attorneys who’ve worked on the case. He even wants to remove Drew Edmondson, who was the Attorney General who originally sued Tyson and other poultry businesses for polluting Oklahoma waters.
Lester is a civil litigation and appellate practice attorney with the Oklahoma City unit of Spencer Fane LLP. Sterling cites his role as trustee for the state’s natural resources and his involvement with various environmental statutes as justification for retaining his own lawyer.
Attorney General Drimmond opposes Starling’s motion to “replace the Attorney General with private counsel despite having no legal basis to do so.”
“This case involves the Attorney General representing the state as a plaintiff in a case, his predecessor initiated on behalf of the state pursuant to his apparent statutory authority,” states Drummond’s counter-motion.
The attorney general said the cases Starling cited to justify state officials’ involvement were cases in which state officials were defendants, defending their own official actions with counsel of their choosing. The State of Oklahoma is the plaintiff in this case. Drummond said if state officials are defending their own conduct, they may choose their counsel.
The attorney general adds, “Starling is not defending any actions he took. Neither does Secretary Starling have express constitutional or statutory authority that would override the Attorney General’s dominion over the case. Secretary Starling is simply the nominal plaintiff through whom the State prosecutes claims for damages or relief.
Then-Attorney General Edmondson in 2005 sued 13 poultry companies in federal court for improper poultry litter disposal and environmental damage to the state’s water by the poultry businesses, mainly in Arkansas, and specifically over the Illinois River watershed.
It became known as the “Busload of Lawyers” case because of the number of attorneys required to represent all the parties. And it has yet to reach an end in the federal District Court for the Northern District of Oklahoma.
Attorney General Drummond last summer proposed a final judgment to the federal court that would have poultry companies remaining in the case pay more than $100 million for poultry litter pollution in the Illinois River Watershed (IRW).
Poultry lawyers were opposed, and the parties remain at an impasse. Federal Judge Gregory Frizzell actually ruled in favor of Oklahoma in January 2023, previously stating in findings that “the principal contributor of these elevated phosphorus levels in waters of IRW is run-off from poultry waste.”
“Oklahoma families deserve better than endless litigation that rewards activists and trial lawyers,” Gov. Stitt said recently..
The first proposed judgment sought fines of $10,000 per day for each violation by each poultry company, occurring between the late 1990s and 2005.
Proposed fines by the company were:
Tyson Foods Inc. – $28,910,000
Cargill Inc. – $23,690,000
Simmons Foods Inc. – $27,160,000
Cal-Maine – $18,270,000
Tyson, Cargill, Cobb-Vantress, Aviagen, Cal-Maine Foods, George’s, Peterson Farms, Simmons Foods, Willow Brook Foods, and all their various subsidiaries were sued by Edmondson on June 13, 2005, seeking $800 million in damages, plus punitive damages.
Judge Frizzell has been involved in the case since its inception. Following his 2023 ruling in favor of the State of Oklahoma, mediation was attempted but failed to achieve a settlement. Frizzell’s ruling came 13 years after the bench trial, which ran from Sept. 21, 2009, to Feb. 18, 2010.
The Illinois River is a 145-mile-long tributary of the Arkansas River in Arkansas and Oklahoma. Oklahoma has long blamed Arkansas for polluting the river. The watershed encompasses 1,069,530 total acres — approximately 1,600 square miles. The Illinois River is designated as a Scenic River. Lake Tenkiller — also known as Tenkiller Ferry Reservoir — was formed by impounding the Illinois River in 1953, providing a public water supply source for area municipalities.
Poultry litter is a mixture of chicken manure, spilled feed, feathers, and bedding materials used in poultry houses. Poultry litter is used in confinement buildings for raising broilers, turkeys, and other birds. The state’s proposed settlement calls for a watershed monitoring team to oversee the application of poultry litter. It might continue for 30 years.
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