Alternatives & Consequences:

Alternatives & Consequences:

Arkansas & Oklahoma:Legal and Policy Backdrop ForWater Quality Situation

An Assessment of the Situation & Discussion of the Roles for

Extension/Land Grant Professionals

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Assessment: Judicial Backdrop

What does litigation do? 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

Missouri v. Illinois (1901) & (1906)Court: should use extreme caution in trans-boundary 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

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Judicial backdrop

Additional multi-jurisdictional water pollution cases: Georgia v. Tennessee Copper Co. (1907)

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

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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

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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

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Oklahoma - Arkansas

Oklahoma sued Arkansas – early 1980s 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

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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 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

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Post-Arkansas v. Oklahoma

City of Albuquerque v. Browner (1996) Water quality standards of the

downstream Tribe must be implemented by the upstream state

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Oklahoma - Arkansas During briefing and argument of the original

OK/AR case, what else was happening on the water and agricultural front? 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”

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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

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1997 – OK policy activities regarding CAFOs Executive Order 97-07 created Governor’s Task

Force on Animal Waste and Water Quality 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

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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

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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

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Oklahoma – Arkansas 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

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Most Recent Litigation involving Oklahoma & Arkansas – City of Tulsa v. Tyson

City of Tulsa v. Tyson, et al (filed December 2001) 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

Phosphates in litter are a CERCLA hazardous substance

Companies are vicariously liable for state law trespass or nuisance created by growers

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Litigation - Tulsa

Settlement discussions followed & Order of March 2003 vacated – Agreement reached 7/16/03

Purpose to resolve case without further litigation “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

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Litigation - Tulsa

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

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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 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) Responsible for development of phosphorous risk-

based 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

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Litigation - Tulsa PI Team couldn’t reach agreement on a

final PI 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

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Litigation - Tulsa 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 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

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Litigation - Tulsa

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

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Litigation - Tulsa

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

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Litigation - Tulsa

Role of a Litter Bank 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?

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Other Litigation – Grand Lake 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

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Litigation – Grand Lake

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

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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

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Litigation - Been 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

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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

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Meeting the standards

Meeting the standards 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

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Potential for additional litigation

AG is threatening lawsuit by State of Oklahoma v. entire poultry industry To protect the IRW And other watersheds? Will other defendants be contemplated?

Current offer to Settle offered by the Poultry Industry to the AG

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Additional litigation Settlement offer

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

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Changes in AR state standards

AR legislature adopted new laws in 2003 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

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Nutrient Surplus Areas 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

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Options for producers 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?

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Role of Extension/Land Grant Professionals

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

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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

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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?

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Attitudes toward the conflict (re: parties) 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

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What about “teachable moments” or possibilities for collaborative dialogue between/among those who are NOT parties to the litigation but who ARE AFFECTED? 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

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Role of Ext/LG Professionals in the litigation 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

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Ext/LG professionals appearing before court as experts/court ordered team 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?

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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?

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Should we not get involved? 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

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Conclusion

Poster Children for Dysfunction Dueling Policies One-upsmanship Courts and AG office making policy Lack of collaboration Cooperative compliance is a possibility

Requires regional group of cooperators Requires intense public education efforts

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Conclusion

Rural economic issues What will happen to historically

economically challenged regions if ag infrastructure vanishes?

Do we have other alternatives for rural economic stability in the wings?

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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

Do they want to be involved? In what way?

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Conclusion

Post-Litigation Repair (After the Storm) 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

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Conclusion

Post-Litigation Repair 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

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Conclusion

My comments: It is our responsibility as LG/Ext

professionals to remember our mission Need protocol and methodology

addressing our involvement post-litigation

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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

479-575-6935 479-575-5306 (fax) [email protected]

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