UPDATE: Circuit Court Backs Frizzell in Poultry Suit

The Cherokee Nation's request to intervene in the state of Oklahoma's water pollution lawsuit against 11 Arkansas poultry companies was rejected by a federal appeals court on Tuesday.

A three-judge panel from the 10th U.S. Circuit Court of Appeals in Denver upheld U.S. District Judge Gregory K. Frizzell's September 2009 decision to prevent the tribe from being added as a plaintiff in the lawsuit the state filed against the poultry companies in 2005. Frizzell denied the Cherokee Nation's motion less than a week before the case was set to go to trial, saying it had waited too long and that granting the motion likely would cause a long delay in a trial that eventually lasted almost five months.

"I'm obviously pleased with the decision," said James Graves, an attorney at Fayetteville's Bassett Law Firm, which is involved in the case. "We agreed with Judge Frizzell and think he did the right thing, and the appeals court has confirmed that."

The state of Oklahoma has argued poultry companies are legally responsible for the disposal of poultry waste that allegedly has damaged the Illinois River Watershed in the northeastern part of the state.

The state has further argued bacteria from the waste has been carried into lakes and streams, and threatens the health of thousands of people who boat and camp in the area.

The Cherokee Nation, which has land within the watershed, filed a motion to intervene and protect its legal interests after Frizzell ruled Oklahoma could not win damages against the poultry companies because the state failed to include the Cherokee Nation as a plaintiff. The state had sought more than $600 million in damages.

The majority opinion in Tuesday's ruling was written by Judge Harris L. Hartz. He ruled the poultry companies' legal rights might be prejudiced by a lengthy trial delay, but that the Cherokee Nation can still file a separate lawsuit against the companies.

Judge Deanell Reece Tacha wrote in a dissenting opinion it did not make legal sense for Frizzell to rule the Cherokee Nation was a necessary party to the case, but later deny its motion to intervene.

The watershed covers about 1 million acres in parts of Oklahoma and Arkansas, and more than 50,000 people in the two states work in the poultry industry. Closing arguments in the case were presented in February, but Frizzell hasn't issued a ruling.

Defendants in the lawsuit include Tyson Poultry Inc., Cargill Inc., George's Inc., and Simmons Foods Inc.

In a statement, Tyson Foods said it was pleased with the decision, which it said affirms its position that the district court "acted properly" by denying the nation's late motion to intervene.

"This is another step in right direction for the poultry industry in this legal matter and we remain hopeful about the district court's pending decision on the trial, which concluded earlier this year.  

We believe the evidence presented during the trial confirms that poultry farmers are abiding by all laws that regulate the use of litter as a fertilizer," the company said. "We also believe the evidence shows that poultry litter used in accordance with these laws is not harming the Illinois River or Lake Tenkiller."