No Injunction in Poultry Litter Case

May 19, 2009 | Roger McEowen


In a case that has been in the courts for years, the U.S. Circuit Court of Appeals for the 10th Circuit has refused to grant an injunction to the state of Oklahoma that would have stopped the use of "poultry litter" as field fertilizer.  Poultry litter includes bedding materials of poultry as well as poultry feces.  As such, poultry litter includes bacteria, E. coli, salmonella and campylobacter.  Many contract production, industrial poultry farms are located in northwest Arkansas and northeast Oklahoma, in an area comprising the Illinois River watershed.  That area is also used for water recreational activities and provides drinking water supplies for the area.  The state of Oklahoma sued under the Resource Conservation and Recovery Act in an attempt to enjoin Tyson from personally applying or allowing its contract producers to apply poultry waste to land located within the watershed.  But, the trial court held that Oklahoma had failed to establish a sufficient causal connection between poultry litter and bacteria in the watershed.  That's a fairly low hurdle to cross, and the state couldn't do it. The court noted that the presence of bacteria in the watershed came from numerous sources, including cattle manure, wildlife and human sources, and not just poultry litter.  So, the state's inability to make the necessary evidentiary link meant that it could not establish that poultry litter in the watershed may have posed a risk of harm to human health. In addition, Tyson argued that its methods for storing and using poultry litter destroyed any bacteria by drying the litter before it was applied to fields and exposed to the sun.

The 10th Circuit agreed, noting that the district court properly viewed the evidence in concluding that Oklahoma had insufficiently established a link between land-applied poultry litter and bacteria in the watershed.  Accordingly, injunctive relief was not appropriate.  A dissenting judge opined that the trial court had utilized an incorrect legal standard, and that the state should have only been required to demonstrate a substantial risk of harm rather than being required to prove causation.  Oklahoma v. Tyson Foods, Inc., et al., No. 08-5154, 565 F.3d 769(10th Cir. 2009).