RCRA Claims Dismissed Against Firm Client Cargill

Author:Mr Delmar Ehrich and Krisann Kleibacker Lee
Profession:Faegre & Benson LLP

In one of the largest natural resource damage suits tried in the United States in the last several years, the U.S. District Court for the Northern District of Oklahoma dismissed on February 17, 2010, claims brought by the State of Oklahoma under the Resource Conservation and Recovery Act (RCRA). Faegre & Benson defended Cargill and Cargill Turkey Production throughout the litigation, which culminated in a five-month-long trial in Tulsa.

Alleging a variety of federal and state environmental theories, in 2005 Oklahoma hired contingency fee counsel to bring suit against numerous chicken and turkey producers. The state alleged that the structure of the poultry industry in a million-acre watershed resulted in the illegal disposal of solid waste as a nonpoint source of phosphorus pollution.

Poultry are grown to maturity by farmers who contract with companies that provide the chicks and feed. When poultry defecate, their waste mixes with bedding on the floor of poultry houses. That mixture—poultry litter—is owned by the farmers and is widely used as a fertilizer and soil amendment for growing forage grasses. The states of Oklahoma and Arkansas regulate and permit the land application of litter. In the lawsuit, however, Oklahoma contends that the poultry companies are responsible for alleged harms caused by claimed overuse of land-applied poultry litter. In particular, the state has argued that increased phosphorus in a reservoir at the bottom of the watershed results from third parties' improper use of poultry litter.

The case has been marked by a series of rulings for the defendants. In September 2008, the district court denied Oklahoma's request for a preliminary injunction that would have suspended the states' regulatory schemes by temporarily banning all litter application within the Illinois River watershed. In July 2009, the court found that the Cherokee Nation's long-claimed interest in the waters at issue prevented Oklahoma from proceeding to trial on its money damage claims, including claims brought under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Oklahoma's claims for injunctive relief under RCRA, state and federal nuisance, state trespass, and state environmental statutes, plus a claim for state statutory civil penalties, were then tried to the court over the course of five months.

After the close of the plaintiff's evidence in December 2009, the defendants moved for judgment, arguing that Oklahoma's...

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