Twenty-one years ago, Oklahoma sued six of the major national poultry companies. (For context, the first iPhone was still in development at the time the complaint was filed.) Oklahoma alleged that poultry litter generated and land applied by the companies’ contract poultry growers in Arkansas and Oklahoma was polluting the Illinois River with elevated levels of phosphorus, causing algal blooms, decreased dissolved oxygen, loss of clarity, and degradation of aquatic life. The suit alleged claims under RCRA, CERCLA, the Clean Water Act, state and federal common law, and state nuisance, trespass, and pollution statutes. The suit sought damages, monetary penalties, and a wide variety of injunctive relief. Oklahoma’s legal team was led by a private law firm, Motley Rice, the South Carolina plaintiff’s firm that pioneered large scale tobacco and asbestos litigation.
In motions proceedings the district court dismissed the RCRA, CERCLA, and Clean Water Act claims, and it dismissed the claim for monetary damages because Oklahoma failed to join an indispensable party, the Cherokee Nation. The case was tried for 52 days over the course of five months and submitted to the court for decision in late February 2010. And then, . . . nothing, silence for thirteen years, just crickets. Four different Oklahoma Attorneys General, including Scott Pruitt (2011-2017), plus two Acting AGs, came and went with no decision from the district court.
On January 9, 2023, a new Oklahoma Attorney General, Gentner Drummond, took office. Four days later, Attorney General Drummond entered his appearance in the poultry litigation. Five days after the Drummond entered his appearance, the district court issued a 215 page opinion finding the poultry companies jointly and severally liable for the water pollution caused by the companies’ contract poultry growers. (For context, Apple released the iPhone 14 four months before the court’s decision.) The court based its finding of liability on statutory public nuisance, federal common law nuisance, trespass, and violation of state statutes that broadly prohibit pollution of state waters. The court directed the parties to submit an agreed judgment on penalties and remedy in 60 days. Not surprisingly, discussions on penalties and remedy did not go well.
After settlement discussions and mediation proved fruitless, the poultry companies moved to dismiss the court’s January 9, 2023, judgment on liability, arguing the state’s claims were moot because the court’s decision was based on a record of conditions in the river that was more than fifteen years out of date. The companies also argued that, as a matter of due process, injunctive relief could not be granted on the basis of the fifteen year-old evidentiary record.
The court rejected the mootness claim and responded to the due process argument by holding a six-day hearing to bring the record on conditions in the watershed up to date. After the hearing, the court concluded that conditions in the watershed had not materially changed, and it once again ordered the parties to submit proposed remedies. Oklahoma proposed a limitation on land application of poultry litter, $74 million in civil penalties, an award of attorneys’ fees to be determined at a later date, and appointment of a special master for a term of 30 years to develop and oversee a Superfund-style remedy in the river and a large downstream lake. The poultry companies proposed entry of a take nothing judgment. On December 19, 2025, the court issued a final judgment awarding $420,000 in civil penalties (less that 1% of the monetary award requested by Oklahoma), but substantially all of the 30-year special master Superfund-style remedy the state requested, plus a limitation on the amount of poultry litter that could be land applied by the companies’ contract growers as fertilizer. The decision left attorneys’ fees to be determined at a later date.
The court’s remedy decision was terrible news for both sides. For the Attorney General, the paltry amount of civil penalties failed to provide a pot of money that met the expectations of the state’s private counsel who have the case on a contingent fee, “not to exceed 50%.” In addition, the limits on future land application of poultry litter “as fertilizer” threatened the slender economic margins of the poultry growers’ operations. The poultry companies, the Oklahoma Farm Bureau, the Oklahoma Cattlemen’s Association, and other agriculture interests protested loudly, all while Attorney General Drummond was gearing up his campaign for Governor. To make matters worse, the sitting governor, who is term limited, publicly criticized Attorney General Drummond’s position (and opposed his candidacy for Governor).
For the poultry companies, the specter of paying for a special master to develop and implement a 30-year Superfund-style remedy for the entire watershed, likely including sediment remediation for a 12,900 acre 132 foot-deep lake, was a nightmare scenario with an unknown price tag. Moreover, in response to the court’s limitation on future land application of poultry litter, some of the companies publicly stated they would cancel some or all of their growers’ contracts in the Illinois River watershed.
In the wake of the court’s remedy decision, Attorney General Drummond and the poultry companies resumed settlement talks. Within weeks, four of the six companies reached settlement agreements with the Attorney General. The agreements included $30 million for the state to use for remedial measures and payment of attorneys’ fees. The agreements also replaced the limits on land application of poultry litter with an agreement to remove a minimum aggregate amount of poultry litter from the watershed each year, and the agreements reduced the role of the special master to auditing the amount of litter removed. The settlement agreements were expressly conditioned on the court vacating its December 19, 2025, judgment on remedy. In February, the four settling companies and Attorney General Drummond filed a joint motion asking the district court to vacate its remedy judgment and approve their settlements. Among other things, the joint motion argued the court should vacate the remedy judgment because the “inquisitorial special master” (that the Attorney General originally requested) was incompatible with the settlements reached by the parties. On April 8, 2026, the district court denied the motion, partly on jurisdictional grounds, but also on the ground the settlement terms were not adequate to remedy the pollution in the watershed.
The litigation is now pending in the 10th Circuit, with twelve separate appeals and cross-appeals. On July 15, Oklahoma and all six poultry companies filed a joint motion asking the 10th Circuit to vacate the district court’s remedy judgment and remand the matter for dismissal of the case so the parties can collectively implement a new global settlement. The global settlement would raise the monetary pot to $41.4 million to be used by the state for environmental remediation and payment of attorneys’ fees, all to be determined by the Attorney General. The Oklahoma Farm Bureau, Oklahoma Cattlemen’s Association, Oklahoma Pork Council, seven individual Oklahoma poultry growers, and thirty Oklahoma state legislators, including the Speaker of the House and the President Pro Tempore of the Senate, have lined up as amici in support of the global settlement and opposed to the district court’s remedy.
On August 17, the 10th Circuit denied without prejudice the joint motion to vacate the district court’s remedy judgment and remanded the appeals and cross-appeals to the district court for the limited purpose of reconsidering the parties’ proposed settlement and request for relief from the remedy judgment. The court of appeals reasoned that the limited remand was appropriate in light of changed circumstances regarding the proposed settlement, namely that all parties now join in the settlement. The court of appeals also stayed the district court’s remedy judgment pending further order of the court. It set no timeline for when the district court should act on remand.
The 10th Circuit’s order is a mixed bag for everyone in the case. Attorney General Drummond may still succeed in snatching settlement from the jaws of judicial victory, but not in time to improve his chances in the August runoff for the Republican gubernatorial nomination. Motley Rice’s chances for a better payday are still alive, but they may take a beating on reconsideration before the district court. The poultry companies may still see their proposed settlement approved, but the settlement will not erase the unhappy precedent of vicarious corporate liability for the acts of the companies’ contract growers. The district court gets an opportunity to gracefully change its mind about the inadequacy of the parties’ proposed settlement, but the 10th Circuit has conspicuously reserved jurisdiction to change the district court’s mind if necessary. The Illinois River may finally see some direct tangible benefit from the decades of interstate poultry litigation, but the resources directed to the river will quite likely be less than the amount the parties collectively have spent on attorneys’ fees.
The 10th Circuit’s remand of this 21 year-old case to the district court so that court can consider once again whether to vacate the final remedy judgment it entered almost a year ago, brings to mind the words of that great American philosopher, Paul Frederic Simon:
Slip sliding away
Slip sliding away
You know the nearer your destination
The more you’re slip sliding away
The history of Oklahoma’s lawsuit would be laughable if it were not so serious. The case offers plenty of lessons, among them the following:
- Interstate agricultural pollution is a serious problem that begs for a national solution grounded in a rational allocation of burdens. Litigation is not a good vehicle for achieving such a solution.
- The Clean Water Act is basically impotent in addressing agricultural water pollution.
- The state law of downstream states is ill-suited for resolving water pollution coming from upstream states.
- States that retain private counsel on a contingent fee basis tend to get what they pay for.
- Things do not always go well for public officials who use environmental litigation as a path for political advancement, at least in Oklahoma.
