Cherokee Nation appeals to join lawsuit against poultry industry
12/30/2009 10:54:37 AM
By Will Chavez
Staff Writer 

TAHLEQUAH, Okla. – The Cherokee Nation submitted arguments on Nov. 23 to the 10th U.S. Circuit Court of Appeals claiming that a federal judge in Tulsa erred when he denied the tribe’s request to join a state lawsuit against the poultry industry. 

The lawsuit concerns the poultry industry’s alleged pollution of the Illinois River Watershed, which is located mostly in northeastern Oklahoma. The tribe’s jurisdictional boundaries make up most of that area.

Oklahoma Attorney General Drew Edmonson sued Tyson Foods Inc. and 11 other poultry companies in 2005 claiming that bacteria from the over-application of poultry litter in the million-acre IRW leaches into groundwater, springs and wells.

With its Nov. 23 filing, the CN asked the appeals court in Denver to overturn Judge Gregory Frizzell’s September ruling and allow the tribe to participate in the State of Oklahoma vs. Tyson Foods. 

“Both sides have admitted that the Cherokee Nation has substantial water rights within its boundaries. Any ruling that the (Frizzell’s) district court makes at trial will impact the Cherokee Nation’s water rights, and the Cherokee Nation must be at the table for that discussion,” said CN Attorney General Diane Hammons. “In fact, there is no dispute that the Cherokee Nation satisfied all the requirements to intervene. Judge Frizzell only ruled that the Nation could not intervene because the motion was not timely.” 

In a September hearing, Frizzell said allowing the CN to join the state’s lawsuit could have triggered a four-month delay because the state and defendants would have to file more motions and provide more discovery for the case. 

He said if the CN’s request had been filed in a “timely manner” it would have received more consideration. But with a jury trial scheduled for Sept. 21, just six days after the CN hearing, he chose not to delay the case any longer. 

“Given that the Cherokee Nation filed its motion to intervene within six weeks of the court ruling that the Nation was a required party, we believe that it is clear that the Nation filed its motion to intervene in a timely fashion and should have been allowed to be a party in the ongoing case,” Hammons said. 

In July, poultry industry attorneys attempted to change the case from a water quality case to one that was about the CN’s water rights, Hammons added. 

The following month, Frizzell agreed with the defendants and ruled the state should have included the CN in its lawsuit because the tribe may share ownership of the watershed. 

The CN reluctantly requested to join the state’s lawsuit on Sept. 2. Hammons said the CN would have preferred to have its land and water claims in the watershed established in a separate lawsuit. 

“We had initially hoped that the State of Oklahoma would be allowed to represent the Nation’s interests in the water quality case,” she said. “Given Judge Frizzell’s rulings, the Cherokee Nation’s water rights have been put at issue and the Cherokee Nation has no choice but to become a party and appeal the denial of our motion to intervene. This appeal is essential if the State of Oklahoma and the Nation are to protect the water quality of our rivers, lakes and streams.”

Reach Staff Writer Will Chavez at (918) 207-3961 or will-chavez@cherokee.org 
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