Water Resources

Water policy, law, science, engineering, use,...

Friday, July 24, 2009

US District Court dismisses monetary claims against poultry companies

On Wednesday July 22, 2009 US District Judge Gregory Frizzell, Norther District of Oklahoma, dismissed all monetary claims by the State of Oklahoma against poultry companies located in Arkansas. At issue has been the ongoing battle over pollution in the Illinois River, which flows from Northwestern Arkansas to Northeastern Oklahoma. The river of contention originates in the municipal headwaters cities of Fayetteville, Springdale, and Rogers, AR, flows through the pastoral hills and meadows of poultry country into Oklahoma, past Tahlequah and into Tenkiller Ferry Reservoir.

The river is nutrient enriched by all the things that happen when humans dominate a watershed - urban development, industrial discharge, municipal discharge, agricultural runoff, and hydrologic regime alteration.

Oklahoma wants Arkansas to cease and desist, or some say, cease to exist.

At issue was the ability of Oklahoma to seek remedy for damages without engaging the tribes in State of Oklahoma v. Tyson Foods, Inc., et. al., 05-cv-329, N.D. Okla. Poultry companies asserted that OK AG Drew Edmondson's case could not go forward under Rule 19 because not all necessary parties to the case were at the table at filing back in 2005.

Poultry companies provided legal precedent for dismissal of claims; Oklahoma and the Cherokee Nation responded by forming an impromptu agreement to share water rights at some level and backdate Cherokee involvement in the suit with Oklahoma serving as their representative. See: http://www.oag.state.ok.us/oagweb.nsf/66835e3f3beb9f30862572ad007bf737/1fe1036b5b4c298e862575be004ae6c2/$FILE/poultry%20-%20state%20cherokee%20agreement.pdf

Judge Frizzell cried fowl. He asserted legal precedent that made it clear that the waters of Cherokee Country are Cherokee jurisdiction first, and that Oklahoma has the burden of any claims on those resources. In addition, the notion that Oklahoma would or could represent tribal interests fairly was disputed by Judge Frizzell. Only the non-monetary claims in the case were left intact.

From the conclusion:
"The Cherokee Nation is a required party under Rule 19 with respect to the State’s claims for damages. Joinder of the Cherokee Nation is not feasible based on the Nation’s status as a dependent sovereign. The Cherokee Nation is an indispensable party and, pursuant to Rule 19(b), plaintiff’s claims for damages should not, in equity and good conscience, be allowed to proceed among the existing parties. The Cherokee Nation is not a required party to the State’s claims for violation of state environmental and agricultural regulations. Movants do not seek dismissal of plaintiff’s claims for injunctive relief. Therefore, defendants’ Motion to Dismiss [Doc. No. 1788] is granted with respect to Counts 1, 2 and 10 and the claims for damages asserted in Counts 4, 5 and 6. The motion is denied with respect to Counts 3, 7, and 8 and claims for injunctive relief asserted in Counts 4, 5 and 6.

Defendants’ alternative Motion for Judgment on the Pleadings Based on Lack of Standing [Doc. No. 1790] is granted insofar as the State attempts to retroactively obtain standing to prosecute the Cherokee Nation’s interests with respect to Counts 1, 2 and 10. The Motion for Judgment on the Pleadings is denied with regard to the remaining counts.

IT IS SO ORDERED this 22nd day of July 2009." Document 2362


Sunday, October 05, 2008

Courts uphold litter application in Oklahoma vs. Poultry Industry case

In the on-going conflict between Oklahoma and Arkansas, Oklahoma Attorney General Drew Edmondson has used a variety of arguments to get U.S. District Judge Gregory K. Frizzell to enjoin poultry producers in Arkansas from applying poultry litter to pastures in the Illinois River watershed. Edmondson has argued unsuccessfully that litter is a hazardous waste under CERCLA and RCRA. He recently argued that the litter is the source of potentially harmful bacteria in the Illinois River.

This week's ruling by Judge Frizzell said that Edmondson failed to make this case. See: http://www.nwaonline.net/articles/2008/02/16/news/021708azpoultrylawsuit.txt

The bar is high in these broad claims cases. Science is not advanced enough to prove causality in these complex systems without substantial data collection and process analysis.


Wednesday, February 08, 2006

Three cases challenge the scope of the Clean Water Act

Law.com -

Three cases challenging the scope of the Clean Water Act will be argued Feb. 21, testing themes of federalism and commerce clause power that were much at issue during Alito's confirmation hearings. The cases have environmentalists worried about how Alito and Chief Justice John Roberts Jr. will ultimately come down.

In two of the cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, the issue is whether, under the commerce clause, the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters covered by the law. In the third case, S.D. Warren Co. v. Maine Board of Environmental Protection, the justices will decide whether the mere fact that a river flows through a dam produces a "discharge" that triggers federal jurisdiction under the act.

Wednesday, April 27, 2005

Daily Herald - Utah should end water subsidies

Tuesday, March 22, 2005

Even GOOGLE honored World Water Day today!

Check out google's mast today - pretty evocative.

Also, check their link honoring World Water Day (March 22, 2005):


Great articles on water rights and market forces in privatization.

Thursday, February 17, 2005


Summit Water Distribution Company, a Utah nonprofit corporation; Leon H. Saunders, an individual; Stuart A. Knowles, an individual; Trilogy Limited, L.P., a Georgia limited partnership; and Lynn Nelson, an individual,
Plaintiffs and Appellants,
Mountain Regional Water Special Service District, a body politic of the State of Utah; Douglas W. Evans, Assistant General Manager of Mountain Regional Water Special Service District; James W. Carbine, General Manager of Mountain Regional Water Special Service District; David E. Hansen, Summit County District Engineer; Steve Jenkins, Director of the Summit County Health Department; the Governing Board of Mountain Regional Water Special Service District, Shauna L. Kerr, Robert Richer, and Kenneth E. Woolstenhulme, in their official capacities; and John Does 1-10,
Defendants and Appellees.

OPINION(For Official Publication)

Case No. 20040091-CA

F I L E D(February 17, 2005)
2005 UT App 66

¶1 Summit Water Distribution Company; Leon H. Sanders; Stuart A. Knowles; Trilogy Limited, L.P.; and Lynn Nelson (collectively, Summit Water) appeal the trial court's determinations that Summit County was authorized by the County Land Use Development and Management Act (CLUDMA), see Utah Code Ann. §§ 17-27-101 to -1003 (2001 & Supp. 2004), to adopt Ordinance No. 436 and, therefore, that Summit Water's complaint was untimely under the appeals provision of CLUDMA, see Utah Code Ann. § 17-27-1001 (Supp. 2004).

Saturday, February 12, 2005

Check out the Water Resources IMPACT Journal

The American Water Resources Association journal Water Resources IMPACT provides articles addressing many thematic water resource management issues.

The archived editions (pre-2004) are available online at no charge - go to http://www.awra.org/impact/ . More recent issues are only available to members of the society. The archived articles are worth looking through.

In particular, the July 2002 issue provides a great overview of the policies, practices, and science of water quality assessment in the US -


Foster and Matlock wrote a great article (OK, I am biased) on the history of the CWA in the Sep 2001 issue, among other great articles -


The Jan 2002 issue was sub-titled "The New Economy of Water" and provides six feature articles from as diverse a group as Mark Rosegrant (CGIAR), Penelope Brook (Worldbank) and Debra Coy (C. Schwab)-