Alternatives & Consequences:

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? • 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

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

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

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

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

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

Post-Arkansas v. Oklahoma • City of Albuquerque v. Browner (1996) • Water quality standards of the downstream Tribe must be implemented by the upstream state

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”

Oklahoma – Arkansas • 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

Oklahoma – Arkansas • 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

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

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

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

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

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

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

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

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

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

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

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

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?

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

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

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

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

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

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

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

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

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

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

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?

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

Role of Extension/Land Grant Professionals • 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

Role of Extension/Land Grant Professionals • 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?

Role of Extension/Land Grant Professionals • 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

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? • 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

Role of Extension/Land Grant Professionals • 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

Role of Extension/Land Grant Professionals • 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?

Role of Extension/Land Grant Professionals • 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?

Role of Extension/Land Grant Professionals • 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

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

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?

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?

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

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

Conclusion • My comments: • It is our responsibility as LG/Ext professionals to remember our mission • Need protocol and methodology addressing our involvement post-litigation

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) • Jhipp@uark.edu

Alternatives & Consequences: