Oklahoma landowners and attorneys are firing back after a legislator issued a press release Wednesday claiming his bill protects poultry farmers from “wealthy, out-of-state activists suing them to promote a liberal environmental agenda.”
After the State House of Representatives passed House Bill 4118, Rep. David Hardin, R-Stillwell, issued a press release to emphasize it only protects law-abiding farmers. But as it heads to the Senate, his words on the House floor and in the press release have rekindled poultry pollution interests.
Hardin’s Wednesday release states it is “in response to the spread of false information,” but basic fact-checks show that the representative’s statements on the House Floor and in the press release also may run astray.
Hardin’s office did not return a request for comment at the phone number listed on the release.
Nutrient Management Plans Hardin said he introduced HB 4118 to insulate small farms, poultry growers, integrators, and waste applicators from legal action as long as they are in good standing under the guidelines of a Nutrient Management Plan approved by the Oklahoma Department of Agriculture, Food, and Forestry.
The plans apply only to farms that produce more than 10 tons of chicken waste annually. Different regulations apply to independent litter haulers and applicators.
Phosphorus overloading in the state’s waterways led to the passage of the Registered Poultry Feeding Operations Act in 1998. It established the management plans periodically reviewed and renewed at each operation. Creating and monitoring the plans has been problematic, and the legislature increased funding and added staff at the Oklahoma Department of Agriculture in 2022 to help remedy that problem.
A nutrient management plan governs how waste is handled. For example, requirements include covered buildings to house waste, buffer zones away from waterways, nutrient testing, and whether on-site litter application as a fertilizer is allowed.
Legal actions Hardin said the state should shield farmers who operate according to the rules. In his press release, he notes, “Sue-and-settle tactics are commonly used nationwide to impose regulations, and the lawyers behind them are known for targeting those who lack the means to defend themselves, such as small-family farms.”
On the House floor on Feb. 19, he said that one of his constituents told him that ongoing litigation cost him $60,00.
Chairman of a coalition of grassroots groups, Matt Wright of the Conservation Coalition of Oklahoma, and two Tulsa-based attorneys involved in poultry litigation said in-state landowners are the ones with legal issues. The coalition represents several homegrown grassroots groups, including Save The Illinois River and Spring Creek Coalition.
“The original bill was filed with a retroactive action that would have undone past rulings,” Wright said. “That was clearly unconstitutional, and he had to remove it, but with the timing of this and the decision on the state’s 20-year lawsuit against poultry producers, it is really suspect.”
Attorney David Page of Tulsa-based Environmental Energy and Natural Resources Advocates oversees five current lawsuits filed by landowners in Adair and Delaware counties.
He said the basis of the suits is the common law of being a good neighbor and criminal trespass. He said the suits named “large operators” and integrators Tyson Foods and Simmons Foods.
“I thought private property was sacrosanct in Oklahoma, but apparently not to these legislators,” Page said.
With colorful language, he labeled the House’s actions stupid and blind to what is apparent to anyone who visits his clients’ homes. He said he plans to introduce media to the issues on-site, including polluted groundwater and odor at times, so intense “it burns your eyes.”
“This legislation would prohibit these people from suing for nuisance trespass negligence. So, basically, the Oklahoma legislature would be, contrary to the United States Constitution and the Oklahoma constitution, taking away their rights to protect their private property.”
Page said that following a nutrient management plan rules doesn’t protect neighbors and, in any case, the oversight is weak. Hardin stated in his press release that he had contacted Ag Department offi cials about increased funding for improved oversight.
“If anyone believes the Department of Agriculture actually enforces something, they believe in fairies and pixies,” Page said. “It’s not reality.”
State agencies sued The Tulsa-based Indian and Environmental law firm successfully sued the Oklahoma Water Resources Board for inadequate poultry water-use oversight in recent years. The firm’s suit filed against the Ag Department on behalf of Spring Creek Coalition landowners is pending in Delaware County District Court. Coalition members began monitoring the creek and documented increasing phosphorus levels.
IAE attorney Matthew Alison said the state violated landowner’s due-process rights when it issued permits without public notice or total consideration of the environmental impacts of constructing eight chicken farms in the Spring Creek watershed, each raising more than a million birds annually.
“Our group has never sued for damages,” he said. “It’s about trying to make sure the state is doing the right thing.”
Individual poultry farmers are named only as “interested parties” in those lawsuits because the basis of the lawsuit arose with construction on those sites. An attorney representing those interested parties has often described them in court proceedings as “collateral damage” in the actions against the state.
“We believe it’s the only way to change how the state has been operating,” Alison said. “Our plaintiffs tried everything short of going to court.”
Hardin cited improved water quality in the Ilinois River watershed on the House floor and lauded nutrient management plans for being a part of Oklahoma’s record of de-listed more 303(d) impaired waterways than any other.
Water quality improvements A review of de-listed waterways in the Department of Environmental Conservation’s 303(d) De-Listing Justifications reports shows no instances of de-listing for reduced nutrient loading in eastern Oklahoma. Most are de-listed for reduced Enterococcus, Escherichia coli, turbidity, and other factors. Scientific studies and agency reports continue to cite nonpoint source pollutants and the Illinois River regularly exceeding the state’s recommended phosphorous load limit.
“Saying it has improved is like saying someone had a 105 fever, and now it’s only 103 or 104,” Wright said.
A review of de-listed waterways in the Department of Environmental Conservation’s 303(d) De-Listing Justifications reports shows no instances of de-listing for reduced nutrient loading in eastern Oklahoma. Most are de-listed for reduced Enterococcus, Escherichia coli, turbidity, and other factors.
Media reports heralding de-listings credit Oklahoma Conservation Commission and Association of Conservation Districts programs involving subsidized, voluntary practices that help farmers fence off waterways to keep out livestock and re-establish riparian strips along with practices such as rotational grazing and building stock ponds for alternate water sources.
Hardin also claimed in his press release that family farms need protection from outside environmental groups because they have decreased by more than 7,000 since 2017.
Where poultry is concerned, U.S. Department of Agriculture National Agricultural Statistical Service surveys for 2017 and 2022 reflect what may be a replacement of smaller farms with more extensive operations. The 2017 report lists total farm operations at 78,500. In 2022, that number decreased to 70,300. However, while most livestock inventories in the two reports show slight decreases or static numbers, production of chicken broilers increased roughly 5%, from 204.5 million birds to 215.3 million.
The Oklahoma Ecology Project is a nonprofit dedicated to in-depth reporting on Oklahoma’s conservation and environmental issues. Learn more at okecology.org
