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States' rights issue in dispute between Arkansas, Oklahoma

Could a water pollution dispute between Oklahoma and Arkansas have long-lasting consequences for state's rights? Arkansas Attorney General Mike Beebe certainly believes so and warns farmers they're especially vulnerable.

“If you think this affects only northwest Arkansas, you need to rethink your position,” said Beebe in an unscheduled appearance at the ASU Agribusiness Conference in Jonesboro, Ark. “This could have significant ramifications.”

Saying he felt there was little choice, last November Beebe pushed a water pollution dispute between Oklahoma and Arkansas into the U.S. Supreme Court arena. Beebe's request came after Oklahoma Attorney General Drew Edmondson filed suit in Tulsa's U.S. District Court accusing Arkansas poultry companies of polluting the Illinois River watershed.

“Protected and scenic, the Illinois River flows ‘the other way,’” said Beebe, a Democrat running for governor. “It flows out of northwest Arkansas and into Oklahoma.

“(Prior to the Tulsa filing), Oklahoma had already been involved in discussions with all of northwest Arkansas, not just poultry farmers and integrators. They'd been talking to the (municipalities) there as well about phosphorus.”

As phosphorus helps spread algae growth in the scenic streambeds, Oklahoma officials wanted to limit the amount Arkansans discharged into water systems. Doing so “obviously would have a significant aesthetic value although no one is claiming any health benefits.”

A lengthy punch-up

The punch-up between the states has been going on for a while. In 2003-04, a degree of resolution was achieved “when the issues of phosphorus reduction was worked out with the cities in northwest Arkansas. That caused Oklahoma to be relatively satisfied with the efforts of the cities.”

Nutrient-rich chicken litter, however, was another matter. Poultry companies and farmers remained in Oklahoma's crosshairs.

“In my opinion, farmers — all kinds of farmers — are the best conservationists I know,” said Beebe. “They have to be. They depend on the land, air and water to make their living. Farmers don't want pollution and any suggestion on the part of Oklahoma or anyone else that this is somehow an effort to disregard pollution is flat-out false. No one wants to pollute streams.

“But there has to be a realistic approach that balances protecting the environment…with good scientific standards that allow agriculture to exist.”

To address Oklahoma's concerns, the state of Arkansas, much to the chagrin of many poultry farmers, “passed significant legislation on nutrient management plans for northwest Arkansas. It restricted what could be done with chicken litter…and meant two or three state agencies now have a lot of oversight. We thought that was a good faith effort and a step towards meeting Oklahoma's concerns. Obviously, that wasn't the case.”

The proper venue

The companies sued by Edmondson include Cargill Inc., Tyson Foods Inc., Cobb-Vantress Inc., Simmons Foods, George's Inc., Cal-Maine Foods Inc., Peterson Farms Inc., and Willow Brook Foods.

Rather than go to district court, Beebe said the proper venue for the dispute is the Arkansas-Oklahoma Arkansas River Compact Commission. More than 30 years ago, Congress passed a law that is, in effect, an interstate compact between Arkansas and Oklahoma. There are six commissioners on the compact and its job is to resolve any water disputes between the states.

Beebe's U.S. Supreme Court petition suggests the commission is the appropriate place to address issues “where money isn't the driving force. The compact would address what Oklahoma claims is the real problem: the environment. As long as it's about money, though, there's less likelihood a serious resolution will occur…

“Some say, ‘Well, you're not likely to get a result (with the compact) because there are three Oklahoma commissioners and three from Arkansas. They'll just ignore the evidence and vote for their own state. A 3-3 tie won't accomplish anything.’

“However, there's a mechanism in place where (such a tie) could be appealed to a federal district court. If that happens, it wouldn't be about the money. It would be about a resolution of the science and serious issues about balancing the environment with permitting farmers to farm.”

Money, money, money

In his ASU speech, Beebe repeatedly referred to Oklahoma's desire for money over pollution control. November's filing in Tulsa, he said, was made after Oklahoma hired three “well-known, well-respected and very effective law firms from the East Coast with significant experience in major litigation…When the driving force of a lawsuit is money, it makes it less feasible to resolve in an amicable way.”

The poultry integrators named in the suit have their own “high-powered and good lawyers,” said Beebe. His concern was more for the producers. “The farmers didn't have any representation. I joked with some of them, ‘I may not be much, but I'm all you've got.’

“If you don't think the farmers won't be affected by what happens (in this suit), you aren't looking down the road. Because farmers will take much of the brunt of whatever happens in the suit with the large (poultry integrators).”

Beebe soon decided the fight with Oklahoma “is over money. That's what it is. They're seeking huge monetary damages against the large poultry companies. (That suit) will actually impact (Arkansas) taxpayers, citizens and farmers. They'll be (the ones) to reap the (consequences) of that lawsuit and we don't think that's fair.”

From the outset Beebe has warned producers that getting the U.S. Supreme Court to take the case is a “major uphill battle…it's an original jurisdiction action between states. Original jurisdiction actions are very rare and the Supreme Court doesn't often take these cases. So I don't want anyone to build up his hopes.

“I don't know what the Supreme Court will do or when it will do it. Something could be announced this afternoon, next week, or months from now. The odds are long that it will even take the case.”

There's not a fight more important than protecting family farmers, said Beebe. Even though many aren't up-to-date on what's going on with this case, “all know the sovereignty of the state must be protected. People in Arkansas should be governed by laws made by Arkansans. Of course, federal laws have authority, as well. But on a state level…laws governing Arkansans should be made by people they've elected. They shouldn't be governed by people they have no say-so over in Oklahoma. That's what this case is about and what we hope the Supreme Court will recognize. I hope everyone understands this is not just a suit against poultry companies. This is a suit that could affect every one of us.”

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