The lawsuit filed by the Oklahoma state attorney general to stop the spread of poultry litter as fertilizer on farm fields because, the suit alleges, poultry litter pollutes the Illinois River, could have a devastating effect on the poultry industry if the suit, which will now be decided by a judge, is won by the attorney general’s office. It could also throw into turmoil the issue of regulatory responsibility within state governments.

The suit, which was changed this week from a jury trial to a judicial decision, names several out-of-state poultry processors, including Tyson Foods, Cargill, George’s, Peterson Farms and Simmons Foods, all of which process birds grown in Oklahoma. If the attorney general prevails, these companies could be responsible for disposing hundreds of thousands of tons of poultry litter annually and for covering the costs of river and watershed cleanup.

"Not only are poultry farmers paying attention to this suit, but state agriculture as a whole in Oklahoma is paying attention," Jackie Cunningham, director of community relations for the Poultry Community Council, which is based in Jay, Okla., told "Just because it’s the poultry industry that’s being targeted today doesn’t mean it can’t be the beef industry or the pork industry tomorrow."

Poultry is the second-largest agricultural commodity, in terms of gross receipts, produced in Oklahoma, after cattle and beef. According to 2007 figures, poultry comprised a $748 million industry in the state. Farmers who want to use poultry litter as fertilizer on fields must register with the state department of agriculture and then must submit to a comprehensive inspection that measures run-off, field gradient, crop rotation and several other factors before a permit is allowed. "But the attorney general says pollution by the poultry industry is a problem even though the industry is regulated by the department of agriculture," Cunningham said. "We’re already regulated – regulated a lot."

The suit pits the state attorney general’s office against the chief regulatory agency of Oklahoma’s farming and livestock production industries, the Oklahoma Dept. of Agriculture. If the attorney general’s office wins the judge’s decision, the balance of regulatory authority will be thrown into question, likely requiring new legislation from the state legislature to clarify the new confusion. While monetary damages have already been ruled out, a decision could establish an injunctive precedent. Moreover, there’s some feeling in the poultry industry that following the successful and highly lucrative lawsuits filed by states attorneys general against the tobacco industry, these agencies and plaintiffs’ attorneys as well see agriculture as another potential pot of gold for state coffers. "I don’t know, maybe the attorney general thought the poultry industry is an easy target," Cunningham said.

Complicating the Oklahoma situation even further, the Cherokee Nation has tribal ownership of water and land in certain regions of the state and has legal claims concerning the purity of these resources. Late in the game the Nation tried to become party to the lawsuit, but last week a judge ruled that the tribe could not participate. However, future negotiations and regulations over pollution of natural resources will likely have to include and accommodate tribal interests.

The Oklahoma suit comes at a time when the use of animal-waste fertilizer is being scrutinized elsewhere in the country. Two weeks ago, the U.S. Environmental Protection Agency issued a draft plan that would require virtually all farms with livestock in any of the six states that comprise the Chesapeake Bay watershed to register as CAFOs (concentrated animal feeding operations), blaming agricultural run-off for significant pollution of the Bay. EPA Administrator Lisa Jackson told the Washington Post that the agency’s plan could be a model for EPA’s approach in other watersheds. "We want to make this a laboratory to show that it can be done," she said.

Cunningham told that "in some ways, we have been our own worst enemy." She said the poultry industry has not done a good job convincing the public of the value and importance of poultry production and of poultry as a healthy protein. She added that the industry also "needs to do a much better job telling the public about our strong environmental stewardship. She noted that the industry had given "$1.1 million to the Oklahoma Scenic River Commission to help the group address stream bank erosion and "other leading causes of nutrient-loading in the water. The gift also helped attract federal funding from the Conservation Reserve Enhancement Program, which provides an additional $4 for every $1 the Commission spends on specific conversation practices.