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