Tenth Circuit Refuses to Enjoin Use of Poultry Waste as Fertilizer

The Tenth Circuit Court of Appeals has affirmed a lower court’s decision not to
enjoin Tyson Foods, Inc. from using poultry litter as fertilizer. Oklahoma v. Tyson
Foods, Inc., No. 08-5154 (10th Cir., decided May 13, 2009). Oklahoma’s attorney
general sought a preliminary injunction to halt the practice, arguing that poultry
litter contains E. coli, Salmonella and Campylobacter and that its use in the Illinois
River Watershed in Arkansas and Oklahoma caused fecal bacterial contamination
of the watershed’s waterways, which are popular for water recreation and supply
drinking water for local residents.

Tyson responded that the bacteria come from multiple sources including wildlife,
various farm animals and humans. The company also noted that the way its farmers
treat poultry litter kills any bacteria and that the watershed’s bacteria levels “do not
correlate to poultry farming or litter application, but rather correspond to areas of
cattle farming and human activity.” The district court heard testimony for eight days
and concluded that Oklahoma failed to demonstrate that “bacteria in the waters of
the [watershed] are caused by the application of poultry litter rather than by other
sources, including cattle manure and human septic systems.” The court also found
the testimony of two of Oklahoma’s expert witnesses unreliable under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The Tenth Circuit affirmed the district court in all respects with one judge concurring
in part and dissenting in part. The dissenting judge would have found that the
lower court “failed to apply the correct legal standard in evaluating Oklahoma’s
likelihood of success on the merits” and also “failed to meet its obligation . . . of
making findings of fact and conclusions of law as to all material issues at stake in its
determination of that likelihood of success.”