Attorney General of Oklahoma v. Tyson Foods, Inc.

Decision Date13 May 2009
Docket NumberNo. 08-5154.,08-5154.
Citation565 F.3d 769
PartiesATTORNEY GENERAL OF the State of OKLAHOMA, State of Oklahoma, ex rel. W.A. Drew Edmondson, in his capacity as Attorney General; Oklahoma Secretary of the Environment, ex rel. C. Miles Tolbert in his capacity as the Trustee for Natural Resources for the State of Oklahoma, Plaintiffs-Appellants, v. TYSON FOODS, INC.; Tyson Poultry, Inc.; Tyson Chicken, Inc.; Cobb-Vantress, Inc.; Cal-Maine Foods, Inc.; Cal-Maine Farms, Inc.; Cargill, Inc.; Cargill Turkey Production, LLC; George's, Inc.; George's Farms, Inc.; Peterson Farms, Inc.; Simmons Foods, Inc.; Willow Brook Foods, Inc., Defendants-Appellees. and State of Arkansas, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Jay T. Jorgensen of Sidley Austin LLP (Mark D. Hopson, Gordon D. Todd of Sidley Austin, LLP, Washington, DC; Robert W. George, Vice President & Associate General Counsel, Bryan Burns and Timothy T. Jones of Tyson Foods, Inc., Springdale, AR; Michael R. Bond of Kutak Rock, LLP, Fayetteville, AR; Patrick M. Ryan, Stephen L. Jantzen of Ryan, Whaley & Coldiron, PC, Oklahoma City, OK; Woodson W. Bassett III, Gary V. Weeks, James M. Graves, and K.C. Dupps Tucker of Bassett Law Firm, Fayetteville, AR, Randall E. Rose and George W. Owens of Owens Law Firm, PC, Tulsa, OK; Robert P. Redemann of Perrine, McGivern, Redemann, Reid, Berry & Taylor, PLLC, Tulsa, OK; Robert E. Sanders and Stephen Williams of Young Williams PA, Jackson, MS; R. Thomas Lay of Kerr, Irvine, Rhodes & Ables, Oklahoma City, OK; Jennifer S. Griffin of Lathrop & Gage, LC, Jefferson City, MO; John H. Tucker and Theresa Noble Hill of Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC, Tulsa, OK; Delmar R. Ehrich, Bruce Jones, and Krisann C. Kleibacker Lee of Faegre & Benson, LLP, Minneapolis, MN; John R. Elrod, Vicki Bronson, and P. Joshua Wisley of Conner & Winters, LLP, Fayetteville, AR; Bruce W. Freeman and D. Richard Funk of Conner & Winters, LLP, Tulsa, OK; A. Scott McDaniel, Nicole M. Longwell, and Philip D. Hixon of McDaniel, Hixon, Longwell & Acord, PLLC, Tulsa, OK, with him on the brief) Washington, DC, for Defendants-Appellees.

Dustin McDaniel, Attorney General, Justin Allen, Chief Deputy Attorney General, Charles L. Moulton, Sr. Assistant Attorney General, and Kendra Akin Jones, Assistant Attorney General, Little Rock, AR, filed an amicus curiae brief for the State of Arkansas, in support of Defendants-Appellees.

Before KELLY, EBEL, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

This is an interlocutory appeal of the district court's denial of a motion for a preliminary injunction. See Okla. ex rel. Edmondson Tyson Foods, Inc., No. 05-CV-329-GKF-SAJ, 2008 WL 4453098, at *1, *3 (N.D.Okla. Sept.29, 2008). The motion arose out of a 2005 complaint filed by Plaintiffs-Appellants (collectively referred to as Oklahoma) against Defendants-Appellees (collectively referred to as Tyson Foods), which alleged various state and federal environmental claims. 1 Supp. App. at 1-35 (Complaint); II App. Doc. 2 (First Amended Complaint); 1 Supp.App. at 36-74 (Second Amended Complaint). Pursuant to that complaint, on November 14, 2007, Oklahoma filed its motion for a preliminary injunction under the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. § 6972(a)(1)(B), seeking to enjoin Tyson Foods from "(1) applying poultry waste to any land within the [Illinois River Watershed (IRW)] and (2) allowing the application of poultry waste generated at its respective poultry feeding operations and/or the respective poultry feeding operations under contract with it to any land within the IRW." III App. Doc. 11, at 707. The district court denied a preliminary injunction on September 29, 2008, see Tyson Foods, Inc., 2008 WL 4453098, at *4, and this appeal followed. Our jurisdiction arises under 28 U.S.C. § 1292(a)(1), and we affirm.


The IRW, which encompasses approximately one million acres of land across Arkansas and Oklahoma, is home to hundreds of large-scale poultry farmers with which Tyson Foods contracts to obtain poultry for processing and marketing.1 V App. Doc. 25, at 1384; VIII App. Doc. 42 (State's Exhibit 427); 8 Supp.App. at 2503-07. Tyson Foods provides these farmers, also known as "growers," with chicks, feed, and other support, while the farmers own and manage their own poultry-growing operations. 8 Supp.App. at 2505-08. The chicks are raised in poultry houses, which are floored with bedding materials, including wood shavings, rice hulls, and other organic substances. 1 Supp.App. at 225; 8 Supp.App. at 2507-08, 2605. The farmers then use the "poultry litter," which includes the bedding materials and poultry feces, as fertilizer on their fields, and often sell or barter it to others. 8 Supp.App. at 2525-26, 2528-32, 2609.

Poultry litter contains the bacteria E. coli, Salmonella, and Campylobacter, all of which can cause a variety of ailments in humans, including death. V App. Doc. 25, at 1495; VI App. Doc. 27, at 1896, 1898; VII App. Doc. 29, at 2244-45, 2268; VIII App. Doc. 39, at 2922 (State's Exhibit 404). The IRW is a popular area for water recreation and supplies drinking water for residents in the area. V App. Doc. 25, at 1383-84; VI App. Doc. 27, at 1843-44, 1850-52. Oklahoma claims that the land application of poultry litter is a cause of fecal bacterial contamination of IRW waterways. Aplt. Br. 14. In support of this claim, Oklahoma argues that the nature of the soils, terrain, weather, and karst geology in the IRW region make it a ready transporter of poultry-litter bacteria into rivers, streams, and groundwater supplies. V App. Doc. 26, at 1621-31, 1634, 1640. Therefore, Oklahoma brought its motion in an effort to enjoin "land disposal" of Tyson Foods's poultry waste in the IRW. See Aplt. Br. 3.

In contrast, Tyson Foods claims that the bacteria in the area comes from myriad sources, including wildlife, various farm animals, and humans. 1 Supp.App. at 232-36; 7 Supp.App. at 2271-72, 2354-59; 8 Supp.App. at 2738-40. Tyson adds that the long-term layering of poultry litter in poultry houses for up to three years, the low rates of humidity in the poultry houses, the subsequent storage and drying of the litter, and its application to fields in a thin layer, thus exposing it to sunlight, results in the death of the bacteria contained within. 8 Supp.App. at 2605-10; see also VI App. Doc. 27, at 1891-92. Furthermore, Tyson claims that IRW bacteria levels do not correlate to poultry farming or litter application, but rather correspond to areas of cattle farming and human activity. 2 Supp.App. at 670-73, 677-81; 8 Supp.App. at 2809-18.

Oklahoma brought its motion for a preliminary injunction under RCRA, which provides that

any person may commence a civil action on his own behalf—

. . .

(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

42 U.S.C. § 6972(a)(1)(B) (emphasis added). To support its arguments, Oklahoma presented various experts to testify to the bacterial contamination resulting from the use of poultry litter as fertilizer.

Particularly relevant to this appeal are experts Dr. Valerie Harwood and Dr. Roger Olsen. Dr. Harwood holds a Ph.D. in biomedical sciences and is a tenured associate professor at the University of South Florida. VI App. Doc. 27, at 1883-84. She testified to her use of a polymerase chain reaction (PCR) methodology, which she claims allowed her to identify poultry litter DNA in the IRW soil and waters. Id. at 1902-30. Dr. Olsen holds a Ph.D. in geochemistry and works for Camp, Dresser, McKee (known as CDM), an engineering, construction, and consulting company. Id. at 2029-30. He testified to his use of the principal component analysis (PCA) methodology to show excessive bacterial presence in the IRW. Id. at 2035-57. Based on this testimony and that of other witnesses, Oklahoma argues that poultry litter is a substantial cause of the IRW's allegedly dangerous bacterial contamination levels. Aplt. Br. 19.

After conducting eight days of evidentiary hearings, receiving testimony from numerous witnesses, and reviewing hundreds of exhibits, the district court concluded that Oklahoma failed to demonstrate that "bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems." Tyson Foods, Inc., 2008 WL 4453098, at *1, *3. As a result, Oklahoma failed to meet the heightened standard (as modified by RCRA) required for a mandatory injunction, which this court set forth in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir.2004) (en banc) (per curiam), aff'd and remanded, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). See Tyson Foods, Inc., 2008 WL 4453098, at *1, *3. The district court further held that the expert testimony of Drs. Harwood and Olsen was not sufficiently reliable under the standards set forth in ...

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