Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
1.
STATE OF OKLAHOMA, ex rel.
W.A. DREW EDMONDSON, in his
capacity as ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA and
OKLAHOMA SECRETARY OF THE
ENVIRONMENT C. MILES TOLBERT,
in his capacity as the TRUSTEE FOR
NATURAL RESOURCES FOR THE
STATE OF OKLAHOMA,

v.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

)
)
)
)
)
)
)
)
)
)
Plaintiff,
)
)
)
)
TYSON FOODS, INC.,
)
TYSON POULTRY, INC.,
)
TYSON CHICKEN, INC.,
)
COBB-VANTRESS, INC.,
)
AVIAGEN, INC.,
)
CAL-MAINE FOODS, INC.,
)
CAL-MAINE FARMS, INC.,
)
CARGILL, INC.,
)
CARGILL TURKEY
)
PRODUCTION, LLC,
)
GEORGE'S, INC.,
)
GEORGE'S FARMS, INC.,
)
PETERSON FARMS, INC.,
)
SIMMONS FOODS, INC., and
)
WILLOW BROOK FOODS, INC., )
)
Defendants. )

Case No. 4:05-cv-00329-GKF-SAJ
JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT
COMES NOW the Plaintiff, the State of Oklahoma, ex rel. W.A. Drew Edmondson, in
his capacity as Attorney General of the State of Oklahoma and Oklahoma Secretary of the
Environment C. Miles Tolbert in his capacity as the Trustee for Natural Resources for the State
of Oklahoma under CERCLA, and alleges as follows:

1

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 2 of 39

I.

NATURE OF THE CASE
1.

Millions of chickens and turkeys, owned by the Poultry Integrator Defendants, are

raised annually on thousands of farms throughout the Illinois River Watershed (the "IRW"), and
include, without limitation, birds raised for food products ("broilers"), birds raised for egg
production ("layers") and birds raised for breeding and resupply purposes ("breeders" and
"pullets"). These "poultry growing operations" result in the generation of hundreds of thousands
of tons of poultry waste for which the Poultry Integrator Defendants are legally responsible. It
has been, and continues to be, the Poultry Integrator Defendants' practice to store and dispose of
this waste on the lands within the IRW -- a practice that has caused injury to the IRW, including
the biota, lands, waters and sediments therein. The Poultry Integrator Defendants are responsible
for this injury. Accordingly, pursuant to federal and state law, the State of Oklahoma brings this
action against the Poultry Integrator Defendants seeking, inter alia, abatement of these practices,
expenses for assessing the injury and damage to the IRW (including the biota, lands, waters and
sediments therein) caused by these practices, remediation of the injury to the IRW (including the
lands, waters and sediments therein) caused by these practices, damages for the lost value and
restoration of the natural resources of the IRW caused by these practices, and equitable relief.
II.

JURISDICTION & VENUE
2.

The State of Oklahoma is asserting claims under the Comprehensive

Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et
seq. and the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6972. The State of Oklahoma is,
further, asserting claims under the federal common law of nuisance. As such, this Court has
jurisdiction over the subject matter of this lawsuit pursuant to 28 U.S.C. § 1331, 42 U.S.C. §

2

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 3 of 39

9613(b) and 42 U.S.C. § 6972(a). This Court has supplemental jurisdiction over the state law
claims being asserted herein pursuant to 28 U.S.C. § 1367.
3.

The State of Oklahoma has suffered injury to the IRW, including the biota, lands,

waters and sediments therein, as a result of the Poultry Integrator Defendants' wrongful acts and
omissions. The IRW, including the lands, waters and sediments therein, is situated, in part, in
the Northern District of Oklahoma. As such, venue is proper in this Court pursuant to 42 U.S.C.
§ 9613(b). Additionally, the alleged endangerment giving rise to the State of Oklahoma's claim
under the SWDA has occurred, in part, in the Northern District of Oklahoma. As such, venue is
also proper in this Court pursuant to 42 U.S.C. § 6972(a). Further, a substantial part of the
events or omissions giving rise to the claims being asserted herein occurred within the Northern
District of Oklahoma, and a substantial part of the property that is the subject to the action is
situated in the Northern District of Oklahoma. As such, venue is also proper in this Court
pursuant to 28 U.S.C. § 1391(b).
4.

Personal jurisdiction is properly exercised over each of the Poultry Integrator

Defendants named herein in that each has engaged in acts or omissions within and outside of
Oklahoma that have injured the IRW, including the biota, lands, waters and sediments therein, in
Oklahoma and / or has deliberately engaged in significant activities in Oklahoma amounting to
continuous and systematic contacts with Oklahoma. See Fed. R. Civ. P. 4(e), (k).
III.

THE PARTIES
A.

Plaintiff

5.

The State of Oklahoma is a sovereign state of the United States. The State of

Oklahoma, without limitation, has an interest in the beds of navigable rivers to their high water
mark, as well as all waters running in definite streams. Additionally, the State of Oklahoma

3

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 4 of 39

holds all natural resources, including the biota, land, air and waters located within the political
boundaries of Oklahoma in trust on behalf of and for the benefit of the public. The State of
Oklahoma, by and through its Attorney General, brings this action on its own behalf and as
parens patriae on behalf of the residents of Oklahoma.

Attorney General W.A. Drew

Edmondson, as chief law officer of the State of Oklahoma, possesses complete dominion over
every litigation in which he properly appears in the interest of the State of Oklahoma, whether or
not there is a relator or some other nominal party. Oklahoma Secretary of the Environment C.
Miles Tolbert is the duly appointed trustee for natural resources for the State of Oklahoma under
CERCLA.
B.

Poultry Integrator Defendants

6.

Poultry Integrator Defendant Tyson Foods, Inc. is a Delaware corporation with its

principal place of business in Arkansas. At times pertinent to this complaint, Poultry Integrator
Defendant Tyson Foods, Inc., individually and / or by and through its duly authorized agents,
servants, employees and / or contractors who were and are acting in the course and scope of their
agency, servitude, employment and / or contracts and in the furtherance of the business of
Poultry Integrator Defendant Tyson Foods, Inc., has been engaged in poultry growing operations
in the IRW, and is responsible for the poultry waste created by these poultry growing operations,
its handling and storage, and its disposal on lands within the IRW and the resultant injury to the
IRW, including the biota, lands, waters and sediments therein.
7.

Poultry Integrator Defendant Tyson Poultry, Inc. is a Delaware corporation with

its principal place of business in Arkansas.

At times pertinent to this complaint, Poultry

Integrator Defendant Tyson Poultry, Inc., individually and / or by and through its duly authorized
agents, servants, employees and / or contractors who were and are acting in the course and scope

4

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 5 of 39

of their agency, servitude, employment and / or contracts and in the furtherance of the business
of Poultry Integrator Defendant Tyson Poultry, Inc., has been engaged in poultry growing
operations in the IRW, and is responsible for the poultry waste created by these poultry growing
operations, its disposal on lands within the IRW and the resultant injury to the IRW, including
the biota, lands, waters and sediments therein.
8.

Poultry Integrator Defendant Tyson Chicken, Inc. is a Delaware corporation with

its principal place of business in Arkansas.

At times pertinent to this complaint, Poultry

Integrator Defendant Tyson Chicken, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Tyson Chicken, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
9.

Poultry Integrator Defendant Cobb-Vantress, Inc. is a Delaware corporation with

its principal place of business in Arkansas.

At times pertinent to this complaint, Poultry

Integrator Defendant Cobb-Vantress, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Cobb-Vantress, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.

5

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 6 of 39

10.

Poultry Integrator Defendant Cal-Maine Foods, Inc. is a Delaware corporation

with its principal place of business in Mississippi. At times pertinent to this complaint, Poultry
Integrator Defendant Cal-Maine Foods, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Cal-Maine Foods, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
11.

Poultry Integrator Defendant Cal-Maine Farms, Inc. is a Delaware corporation

with its principal place of business in Mississippi. At times pertinent to this complaint, Poultry
Integrator Defendant Cal-Maine Farms, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Cal-Maine Farms, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
12.

Poultry Integrator Defendant Cargill, Inc. is a Delaware corporation with its

principal place of business in Minnesota. At times pertinent to this complaint, Poultry Integrator
Defendant Cargill, Inc., individually and / or by and through its duly authorized agents, servants,
employees and / or contractors who were and are acting in the course and scope of their agency,
servitude, employment and / or contracts and in the furtherance of the business of Poultry

6

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 7 of 39

Integrator Defendant Cargill, Inc., has been engaged in poultry growing operations in the IRW,
and is responsible for the poultry waste created by these poultry growing operations, its handling
and storage, and its disposal on lands within the IRW and the resultant injury to the IRW,
including the biota, lands, waters and sediments therein.
13.

Poultry Integrator Defendant Cargill Turkey Production, LLC is a Delaware

corporation with its principal place of business in Minnesota.

At times pertinent to this

complaint, Poultry Integrator Defendant Cargill Turkey Production, LLC, individually and / or
by and through its duly authorized agents, servants, employees and / or contractors who were and
are acting in the course and scope of their agency, servitude, employment and / or contracts and
in the furtherance of the business of Poultry Integrator Defendant Cargill Turkey Production,
LLC, has been engaged in poultry growing operations in the IRW, and is responsible for the
poultry waste created by these poultry growing operations, its handling and storage, and its
disposal on lands within the IRW and the resultant injury to the IRW, including the biota, lands,
waters and sediments therein.
14.

Poultry Integrator Defendant George's, Inc. is an Arkansas corporation with its

principal place of business in Arkansas. At times pertinent to this complaint, Poultry Integrator
Defendant George's, Inc., individually and / or by and through its duly authorized agents,
servants, employees and / or contractors who were and are acting in the course and scope of their
agency, servitude, employment and / or contracts and in the furtherance of the business of
Poultry Integrator Defendant George's, Inc., has been engaged in poultry growing operations in
the IRW, and is responsible for the poultry waste created by these poultry growing operations, its
handling and storage, and its disposal on lands within the IRW and the resultant injury to the
IRW, including the biota, lands, waters and sediments therein.

7

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 8 of 39

15.

Poultry Integrator Defendant George's Farms, Inc. is an Arkansas corporation

with its principal place of business in Arkansas. At times pertinent to this complaint, Poultry
Integrator Defendant George's Farms, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant George's Farms, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
16.

Poultry Integrator Defendant Peterson Farms, Inc. is an Arkansas corporation with

its principal place of business in Arkansas.

At times pertinent to this complaint, Poultry

Integrator Defendant Peterson Farms, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Peterson Farms, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
17.

Poultry Integrator Defendant Simmons Food, Inc. is an Arkansas corporation with

its principal place of business in Arkansas.

At times pertinent to this complaint, Poultry

Integrator Defendant Simmons Food, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the

8

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 9 of 39

business of Poultry Integrator Defendant Simmons Food, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
18.

Poultry Integrator Defendant Willow Brook Foods, Inc. is a Missouri corporation

with its principal place of business in Missouri. At times pertinent to this complaint, Poultry
Integrator Defendant Willow Brook Foods, Inc., individually and / or by and through its duly
authorized agents, servants, employees and / or contractors who were and are acting in the course
and scope of their agency, servitude, employment and / or contracts and in the furtherance of the
business of Poultry Integrator Defendant Willow Brook Foods, Inc., has been engaged in poultry
growing operations in the IRW, and is responsible for the poultry waste created by these poultry
growing operations, its handling and storage, and its disposal on lands within the IRW and the
resultant injury to the IRW, including the biota, lands, waters and sediments therein.
19.

Defendants named above are collectively referred to as the "Poultry Integrator

Defendants."
20.

Unless otherwise noted, each and every count alleged herein applies to each and

every Poultry Integrator Defendant.
IV.

FACTUAL ALLEGATIONS
A.

The Illinois River Watershed

21.

The 1,069,530-acre Illinois River Watershed ("IRW") straddles the Oklahoma-

Arkansas border. The approximately 576,030 acres of the IRW that are located in Oklahoma
include portions of Delaware, Adair, Cherokee and Sequoyah counties. See Exhibit 1.

9

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 10 of 39

22.

Within the IRW are the Illinois River, as well as its major tributaries, the Baron

(a/k/a Barren) Fork River, the Caney Creek and the Flint Creek. Approximately 70 miles of the
Illinois River have been designated by the Oklahoma Legislature as a Scenic River Area.
Additionally, approximately 35 miles of the Barren Fork River and approximately 12 miles of
the Flint Creek have been designated by statute as Scenic River Areas.
23.

The designation as "Scenic River Areas" reflects a recognition by the Oklahoma

Legislature that these rivers and streams "possess such natural scenic beauty, water conservation,
fish, wildlife and outdoor recreation values of present and future benefit to the people of the state
that it is the policy of the Legislature to preserve these areas for the benefit of the people of
Oklahoma."
24.

The Illinois River and its tributaries are viewed as outstanding water resources

for, inter alia, recreation, fish and wildlife propagation and aesthetic values.
25.

The Illinois River feeds into the 12,900 acre Tenkiller Ferry Lake, which has been

described as "the emerald jewel in Oklahoma's crown of lakes."
26.

Among the recreational uses for which the resources of the Illinois River, its

tributaries, Tenkiller Ferry Lake and the adjoining lands have been justly noted are floating
(canoes, kayaks and rafts), fishing, camping, swimming, diving, hiking and sightseeing.
27.

Additionally, the waters of the IRW have been used, and are used, and may in the

future be used as a source of drinking water.
28.

In recent years these resources have been and are continuing to be polluted and

degraded, and their uses have been and are continuing to be injured and impaired.
29.

This pollution of and injury to the IRW, including the biota, lands, waters and

sediments therein, are indivisible.

10

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 11 of 39

30.

The Poultry Integrator Defendants, by virtue of their improper poultry waste

disposal practices, are responsible for this pollution of, as well as the degradation of, impairment
of and injury to the IRW, including the biota, lands, waters and sediments therein.
B.

The Poultry Integrator Defendants' Domination and Control of the
Actions and Activities of Their Respective Poultry Growers

31.

Each of the Poultry Integrator Defendants is in the business of producing poultry

and / or poultry products for sale and use / consumption in the United States and internationally.
32.

Each of the Poultry Integrator Defendants is intimately involved in and controls

each stage of the poultry growing process.
33.

Each of the Poultry Integrator Defendants raises its birds itself and / or contracts

with "growers" to raise its birds.
34.

The contracts establishing the growing arrangements between the respective

Poultry Integrator Defendants and their poultry growers are presented to the poultry growers
with no opportunity to negotiate their essential terms, and constitute contracts of adhesion.
35.

Under the terms of a typical contract for broilers, for example, a poultry grower

agrees to raise to adulthood a flock of chicks and / or poults belonging to a respective Poultry
Integrator Defendant.
36.

Each of the Poultry Integrator Defendants supplies the chicks and / or poults to its

respective poultry growers, and picks up the birds from its respective poultry growers when the
birds reach maturity.
37.

The birds are owned by the respective Poultry Integrator Defendants throughout

the entire growing process.

11

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 12 of 39

38.

Additionally, each of the respective Poultry Integrator Defendants formulates,

provides and owns the feed that is fed to its birds during the growing process. The constituents
found in poultry waste are influenced by the feed formulas.
39.

Further, each of the Poultry Integrator Defendants dictates to its respective poultry

growers all aspects of the care and handling for its birds. Specifically, each of the Poultry
Integrator Defendants dictates to its respective poultry growers, without limitation:
a.

the type of the buildings, equipment and other facilities used in the
poultry grower's operation;

40.

b.

the feed to be fed to the birds;

c.

the feed supplements to be fed to the birds;

d.

the medications and vaccinations to be provided to the birds; and

e.

the environmental conditions under which the birds are raised.

During the growing process, each of the Poultry Integrator Defendants makes

numerous periodic site visits to its respective poultry growers' poultry growing operations to
ensure compliance with its dictates regarding the care and handling of its birds.
41.

Each of the Poultry Integrator Defendants is similarly intimately involved in and

controls each stage of the poultry growing process with respect to layer, breeder and pullet
growing operations.
42.

In sum, each of the Poultry Integrator Defendants so dominates and controls the

actions and activities of its respective poultry growers that the relationship is not one of
independent contractor, but rather one of employer and employee or one of principal and agent,
and one of owner, operator or arranger of poultry waste under CERCLA.

12

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 13 of 39

43.

Alternatively, even should the relationship with the Poultry Integrator Defendants

be one of independent contractor, the Poultry Integrator Defendants have known and have had
reason to know that in the ordinary course of the poultry growers raising birds in the usual and
prescribed manner poultry waste will be handled and disposed of in such a manner to cause
injury to the IRW, including the biota, lands, waters and sediments therein, and therefore the
Poultry Integrator Defendants are legally responsible for their respective poultry growers' poultry
waste and its environmental impacts.
44.

Additionally, many of the Poultry Integrator Defendants themselves own poultry

growing operations.

At these operations, too, the respective Poultry Integrator Defendants

control all aspects of the care and handling of the birds and are, therefore, owners, operators or
arrangers of poultry waste under CERCLA.
C.

The Poultry Integrator Defendants' Poultry Waste Generation

45.

Poultry growing operations within the IRW are estimated to generate hundreds of

thousands of tons of poultry waste per year.
46.

Because each of the respective Poultry Integrator Defendants at all times owns its

birds being raised within the IRW, because each of the respective Poultry Integrators at all times
formulates and owns the feed being fed to its birds being raised within the IRW, and because
each of the respective Poultry Integrator Defendants at all times so dominates and controls the
actions and activities of its respective poultry growers with respect to the growing of its birds as
well as controlling its own poultry growing operations, the Poultry Integrator Defendants are
responsible for the safe handling and disposal of the poultry waste generated in the course of the
poultry growing operations associated with their respective birds.
D.

The Poultry Integrator Defendants' Improper Poultry Waste Disposal
Practices and Their Impact

13

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 14 of 39

47.

Each of the Poultry Integrator Defendants has long known that it has been and

continues to be the practice to routinely and repeatedly improperly store the poultry waste
generated in the course of its respective growing operations on lands within the IRW. See, e.g.,
Exhibit 2.
48.

Each of the Poultry Integrator Defendants has long known that it has been and

continues to be the practice to dispose of the poultry waste generated in the course of its
respective growing operations by routinely and repeatedly applying it to lands within the IRW.
See, e.g., Exhibit 3.
49.

Each of the Poultry Integrator Defendants has long known that the application of

poultry waste to lands within the IRW, in the amounts that it is applied, is in excess of any
agronomic need and is not consistent with good agricultural practices and, as such, constitutes
waste disposal rather than any normal or appropriate application of fertilizer.
50.

Each of the Poultry Integrator Defendants has long known that the application of

its poultry waste to lands within the IRW, in the amounts that it is applied and with the frequency
that it is applied, far exceeds the capacity of the soils and vegetation to absorb those nutrients
present in the poultry waste.
51.

Each of the Poultry Integrator Defendants has long known that these poultry

waste disposal practices lead to the run-off and release of large quantities of phosphorus and
other hazardous substances, pollutants and contaminants in the poultry waste onto and from the
fields and into the waters of the IRW.
52.

Each of the Poultry Integrator Defendants has long known that the application of

poultry waste to lands within the IRW causes large quantities of phosphorus and other hazardous
substances, pollutants and contaminants to accumulate in the soils.

14

At many locations,

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 15 of 39

phosphorus and other hazardous substances, pollutants and contaminants have built up in the soil
to such an extent that, even without any additional application of poultry waste to the land, the
excess residual phosphorus and other hazardous substances, pollutants and contaminants will
continue to run-off and be released into the waters of the IRW in the future.
53.

Despite this knowledge, each of the Poultry Integrator Defendants has, by virtue

of its contracts, arranged for its respective growers to take possession of the poultry waste
coming from its birds. Each of the Poultry Integrator Defendants has made this arrangement
with full knowledge that the growers were annually placing hundreds of thousands of tons of
their poultry waste directly on the ground and that these actions would lead to the run off and
release of phosphorus and other hazardous substances, pollutants and contaminants into the
lands and waters of the IRW.
54.

Simply put, each of the Poultry Integrator Defendants has long known that poultry

waste is an enormous contributor to phosphorus and other pollution in the IRW. Nevertheless,
each of the Poultry Integrator Defendants continues to allow large amounts of its respective
poultry waste to be improperly stored and applied on lands within the IRW each year (hereinafter
"poultry waste disposal practices").
55.

The Poultry Integrator Defendants' poultry waste disposal practices are not, and

have not been, undertaken in conformity with federal and state laws and regulations.
56.

In sum, each of the Poultry Integrator Defendants has long known that such

poultry waste disposal practices present the threat that constituents of poultry waste will run off
and be released into and from the land to which the poultry waste is applied thereby potentially
adversely impacting the IRW, including the biota, lands, waters and sediments therein, and that
such practices have in fact resulted in constituents of poultry waste running off and being

15

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 16 of 39

released into and from the land to which the poultry waste is applied thereby adversely impacting
the IRW, including the biota, lands, waters and sediments therein.
57.

Each of the Poultry Integrator Defendants has long known that poultry waste

contains a number of constituents that can and do cause harm to the environment and pose
human health hazards. These constituents include, but are not limited to:

58.

a.

phosphorus / phosphorus compounds;

b.

nitrogen / nitrogen compounds;

c.

arsenic / arsenic compounds;

d.

zinc / zinc compounds;

e.

copper / copper compounds;

f.

hormones; and / or

g.

microbial pathogens.

The lands and waters in the IRW in fact contain elevated levels of a number of

such constituents.
59.

The elevated levels of such constituents in the IRW, including in the lands, waters

and sediments therein, as well as the resultant injury to the IRW, including the biota, lands,
waters and sediments therein, have been caused by the Poultry Integrator Defendants' improper
poultry waste disposal practices.
60.

Phosphorus / phosphorus compounds and nitrogen / nitrogen compounds have

been designated as hazardous substances under CERCLA. Elevated levels of phosphorus /
phosphorus compounds, as well as elevated levels of nitrogen / nitrogen compounds, can cause
periodic algae blooms, excessive algal growths, hypolimnetic anoxia and other adverse impacts,
and have in fact caused periodic algae blooms, excessive algal growths, hypolimnetic anoxia and

16

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 17 of 39

other adverse impacts in the waters of the IRW, resulting in eutrophication, a degradation in
water quality and sediments, injury to biota and impaired uses. See, e.g., Exhibit 4.
61.

Certain arsenic / arsenic compounds, zinc / zinc compounds, and copper / copper

compounds are also designated as hazardous substances under CERCLA.

Elevated

concentrations of arsenic, for example, have been shown to cause cancer, as well as adverse
effects to the gastrointestinal tract, the cardiovascular system, blood, the liver, the lungs, skin and
the nervous system, in humans. Elevated concentrations of zinc have been shown to cause
adverse effects to the gastrointestinal tract and blood in humans. Elevated concentrations of
copper have been shown to cause adverse effects to the gastrointestinal tract in humans.
Additionally, elevated concentrations of these metals may be toxic to sensitive terrestrial, aquatic
and sediment species.
62.

Elevated levels of hormones, including estradiol, in rivers, streams and lakes

cause -- even in very low concentrations -- adverse effects on the reproductive biology of fish
and other aquatic vertebrate species.
63.

Elevated levels of microbial pathogens, including e. coli and other coliforms,

campylobacter, enterococci, yersinia, clostridium, salmonella and staphylococcus, are known to
be present in poultry waste. These microbial pathogens are toxic and can cause illness when
they are ingested by human beings and biota.
E.

The Reason for This Lawsuit

64.

In a recent advertisement published in Oklahoma, certain of the Poultry Integrator

Defendants admitted that one source of excess nutrients in the waters of eastern Oklahoma is
poultry waste.

17

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 18 of 39

65.

Additionally, in a recent open letter published to the citizens of Oklahoma, certain

of the Poultry Integrator Defendants admitted that their poultry waste "potentially impact[s] the
health of the rivers and streams that lie within [Oklahoma's Scenic River Watersheds]."
66.

In that same open letter, certain of the Poultry Integrator Defendants further

admitted that they "are prepared to do [their] part to take care of the poultry portions of the
nutrient equation."
67.
this rhetoric.

To date, however, the Poultry Integrator Defendants' actions have not matched
By comparison, other major industries in Oklahoma have long accepted

responsibility for the proper management and disposal of wastes that are generated by their
business so as not to cause any release to the environment.
68.

Indeed, the Poultry Integrator Defendants continue with their improper poultry

waste disposal practices to this day. Accordingly, the State of Oklahoma has been forced to
bring this lawsuit against the Poultry Integrator Defendants to protect and restore the IRW,
including the biota, land and waters therein.
V.

CAUSES OF ACTION
A.

Count 1:

CERCLA Cost Recovery -- 42 U.S.C. § 9607

69.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
70.

By and through the Poultry Integrator Defendants’ activities and operations,

“hazardous substances” within the meaning of CERCLA, 42 U.S.C. § 9601(14), including but
not limited to phosphorus and phosphorus compounds, nitrogen and nitrogen compounds, zinc
and zinc compounds, copper and copper compounds and arsenic and arsenic compounds, were
disposed of in the IRW, including the lands, waters and sediments therein, resulting in "releases"

18

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 19 of 39

and/or "threatened releases" of hazardous substances within the meaning of CERCLA, 42 U.S.C.
§ 9601(22), into the IRW, including the lands, waters and sediments therein.
71.

The IRW, including the lands, waters and sediments therein, constitutes a "site or

area where a hazardous substance . . . has been deposited, stored, disposed of, or placed, or
otherwise come to be located; . . . ." and, as such, constitutes a "facility" within the meaning of
CERCLA, 42 U.S.C. § 9601(9). Furthermore, the grower buildings, structures, installations and
equipment, as well as the land to which the poultry waste has been applied, also constitute a
"facility" within the meaning of CERCLA, 42 U.S.C. § 9601(9), from which the "releases" and /
or "threatened releases" of "hazardous substances" into the IRW, including the lands, waters and
sediments therein, resulted.
72.

Each of the Poultry Integrator Defendants is a "person" within the meaning of

CERCLA, 42 U.S.C. § 9601(21).
73.

The Poultry Integrator Defendants are covered persons within the meaning of

CERCLA, 42 U.S.C. § 9607(a), in that they, individually and collectively, have arranged for the
disposal of their poultry waste which contains hazardous substances, including but not limited to
phosphorus and phosphorus compounds, nitrogen and nitrogen compounds, zinc and zinc
compounds, copper and copper compounds and arsenic and arsenic compounds, which has been
released to and within the IRW, including the lands, waters and sediments therein, and these
hazardous substances have been released within the IRW, including the lands, waters and
sediments therein.
74.

Additionally, the Poultry Integrator Defendants are covered persons within the

meaning of CERCLA, 42 U.S.C. § 9607(a), in that they, individually and collectively, have been
owners and / or operators during the time their poultry waste containing these hazardous

19

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 20 of 39

substances was generated and disposed of and released into the IRW, including the lands, waters
and sediments therein.
75.

As a result of responding to these releases or threatened releases of hazardous

substances by the Poultry Integrator Defendants into the IRW, including the lands, waters and
sediments therein, the State of Oklahoma has incurred, and will continue to incur, necessary
response costs in a manner consistent with the National Contingency Plan (“NCP”), or
alternatively, in a manner not inconsistent with the NCP. These costs include, but are not limited
to, costs of monitoring, assessing and evaluating water quality, wildlife and biota in the IRW.
76.

Accordingly, the State of Oklahoma is entitled to recover from the Poultry

Integrator Defendants, jointly and severally, all of the State of Oklahoma’s past and present
necessary response costs under CERCLA § 107. Further, the State of Oklahoma is entitled to a
declaratory judgment holding the Poultry Integrator Defendants liable, jointly and severally, for
all future necessary response costs incurred by the State of Oklahoma.
B.

Count 2:

CERCLA Natural Resource Damages -- 42 U.S.C. § 9607

77.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
78.

The Oklahoma Secretary of the Environment, acting on behalf of the State of

Oklahoma, is the designated CERCLA trustee for "natural resources" in, belonging to, managed
by, held in trust by, appertaining to or otherwise controlled by the State of Oklahoma and shall
assess damages to natural resources for purposes of CERCLA for those natural resources under
their trusteeship.
79.

By and through the Poultry Integrator Defendants' activities and operations,

"hazardous substances" within the meaning of CERCLA, 42 U.S.C. § 9601(14), including but

20

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 21 of 39

not limited to phosphorus and phosphorus compounds, nitrogen and nitrogen compounds, zinc
and zinc compounds, copper and copper compounds and arsenic and arsenic compounds, were
disposed of in the IRW, including the biota, lands, waters and sediments therein, resulting in
"releases" and/or "threatened releases" of hazardous substances within the meaning of CERCLA,
42 U.S.C. § 9601(22), into the IRW, including the lands, waters and sediments therein.
80.

The IRW, including the lands, waters and sediments therein, constitutes a "site or

area where a hazardous substance . . . has been deposited, stored, disposed of, or placed, or
otherwise come to be located; . . . ." and, as such, constitutes a "facility" within the meaning of
CERLCA, 42 U.S.C. § 9601(9). Furthermore, the grower buildings, structures, installations and
equipment, as well as the land to which the poultry waste has been applied, also constitute a
"facility" within the meaning of CERCLA, 42 U.S.C. § 9601(9), from which the "releases" and /
or "threatened releases" of "hazardous substances" into the IRW, including the lands, waters and
sediments therein, resulted.
81.

Each of the Poultry Integrator Defendants is a "person" within the meaning of

CERCLA, 42 U.S.C. § 9601(21).
82.

The Poultry Integrator Defendants are covered persons within the meaning of

CERCLA, 42 U.S.C. § 9607(a), in that they, individually and collectively, have arranged for the
disposal of their poultry waste which contains hazardous substances, including but not limited to
phosphorus and phosphorus compounds, nitrogen and nitrogen compounds, zinc and zinc
compounds, copper and copper compounds and arsenic and arsenic compounds, which has been
released to and within the IRW, including the lands, waters and sediments therein, and these
hazardous substances have been released within the IRW, including the lands, waters and
sediments therein.

21

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 22 of 39

83.

Additionally, the Poultry Integrator Defendants are covered persons within the

meaning of CERCLA, 42 U.S.C. § 9607(a), in that they, individually and collectively, have been
owners and / or operators during the time their poultry waste containing these hazardous
substances was generated, disposed of and released into the IRW, including the lands, waters and
sediments therein.
84.

As a result of the release of hazardous substances by the Poultry Integrator

Defendants into the IRW, including the lands, waters and sediments therein, there has been
injury to, destruction of, and loss of natural resources in the IRW, including the land, fish,
wildlife, biota, air, water, ground water, drinking water supplies and all other such resources
therein, for which the Oklahoma Secretary of the Environment is trustee on behalf of the State of
Oklahoma.
85.

This injury to, destruction of, and loss of natural resources in the IRW, including

the land, fish, wildlife, biota, air, water, ground water, drinking water supplies and all other such
resources therein, for which the Oklahoma Secretary of the Environment is trustee on behalf of
the State of Oklahoma is continuing.
86.

The natural resources that have been and continue to be injured, destroyed, or lost

as a result of the release of hazardous substances by the Poultry Integrator Defendants include,
but are not limited to the land, fish, wildlife, biota, air, water, ground water, drinking water
supplies and all other such resources belonging to, managed by, held in trust by, appertaining to,
or otherwise controlled by the State of Oklahoma.
87.

The State of Oklahoma has incurred reasonable and necessary costs to assess and

evaluate this injury, destruction and loss of the natural resources.

22

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 23 of 39

88.

Accordingly, the Poultry Integrator Defendants are jointly and severally liable to

the State of Oklahoma and the Oklahoma Secretary of the Environment as trustee under
CERCLA 107 for damages for injury to, destruction of, and loss of these natural resources in the
IRW, including the land, fish, wildlife, biota, air, water, ground water, drinking water supplies
and all other such resources therein, including but not limited to (a) the cost to restore, replace, or
acquire the equivalent of such natural resources; (b) the compensable value of lost services
resulting from the injury to such natural resources; and (c) the reasonable cost of assessing injury
to the natural resources and the resulting damages.
C.

Count 3:

SWDA Citizen Suit

89.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
90.

On or about March 9, 2005, in accordance with the applicable federal statutes and

regulations, the State of Oklahoma served its Notice of Intent to File Suit under the Solid Waste
Disposal Act ("SWDA"), by registered mail, properly addressed and postage prepaid, to each of
the Poultry Integrator Defendants as well as the appropriate federal and state officials. A copy of
this Notice is attached hereto as Exhibit 5.
91.

Poultry waste is a solid and / or hazardous waste under the SWDA.

92.

Each of the Poultry Integrator Defendants has in the past been or is now a

generator of poultry waste and / or has in the past been or is now an owner or operator of
treatment, storage or disposal facility for poultry waste.
93.

Each of the Poultry Integrator Defendants is a "person" under the SWDA who has

contributed to and / or is contributing to the past or present handling, storage, treatment,
transportation or disposal of poultry waste in the IRW and lands and waters therein.

23

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 24 of 39

94.

An imminent and substantial endangerment to health or the environment may be

presented and is in fact presented as a direct and proximate result of each of the Poultry
Integrator Defendants' respective contribution to the handling, storage, treatment, transportation
or disposal of poultry waste in the IRW and lands and waters therein.
95.

Accordingly, the State of Oklahoma is entitled to an injunction restraining each

and all of the Poultry Integrator Defendants from their respective pollution-causing conduct, to
remediate the IRW and the lands and waters therein, and to take all such other action as may be
necessary to abate the imminent and substantial endangerment to health or the environment.
96.

Additionally, the State of Oklahoma is entitled to all appropriate civil penalties

under the SWDA, as well as all costs of litigation (including reasonable attorneys and expert
witness fees).
D.

Count 4:

State Law Nuisance

97.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
98.

As a result of their poultry waste disposal practices, the Poultry Integrator

Defendants have intentionally caused an unreasonable invasion of, interference with and
impairment of the State of Oklahoma's and the public's beneficial use and enjoyment of the IRW,
including the biota, lands, waters and sediments therein, thereby causing the State of Oklahoma
and the public inconvenience, annoyance, impairment of use, interference with enjoyment, and
other injury. This unreasonable and intentional invasion of, interference with and impairment of
the State of Oklahoma's and the public's beneficial use and enjoyment of the IRW, including the
biota, lands, waters and sediments therein, by the Poultry Integrator Defendants continues to this
day.

24

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 25 of 39

99.

Additionally, as a result of their poultry waste disposal practices, the Poultry

Integrator Defendants' wrongful conduct has caused an unreasonable and substantial danger to
the public's health and safety in the IRW, including the lands, waters and sediments therein. This
unreasonable and substantial danger to the public's health and safety in the IRW, including the
lands, waters and sediments therein, by the Poultry Integrator Defendants continues to this day.
100.

Such conduct thereby constitutes a private and public nuisance under applicable

state law. The nuisance and injuries caused thereby are substantial, tangible, continuing, and
both temporary and permanent. The continuation of such conduct threatens irreparable harm.
101.

The Poultry Integrator Defendants have at all times pertinent to this complaint

known that an invasion of, interference with and impairment of the State of Oklahoma's and the
public's beneficial use and enjoyment of the IRW, including the biota, lands, waters and
sediments therein, as well as the creation of an unreasonable and substantial danger to the
public's health and safety, have resulted from, or have been substantially certain to result from,
their wrongful poultry waste disposal practices.
102.

Further, by statute, the Poultry Integrator Defendants’ pollution of the waters

within the IRW and placement / contribution to the placement of poultry wastes where they are
likely to cause pollution of the IRW, including the lands, waters and sediments therein, constitute
a public nuisance per se pursuant to 27A Okla. Stat. § 2-6-105.
103.

Yet further, by statute, the Poultry Integrator Defendants are subject to the

jurisdiction of the Oklahoma Department of Agriculture, Food, and Forestry pursuant to the
Oklahoma Environmental Quality Act and, as such, their pollution of the land and waters within
the IRW constitutes a public nuisance per se pursuant to 2 Okla. Stat. § 2-18.1.

25

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 26 of 39

104.

By reason of the foregoing, the State of Oklahoma is entitled to equitable relief,

including but not limited to an injunction requiring each and all of the Poultry Integrator
Defendants to abate their pollution-causing conduct --including immediate cessation of all
releases of poultry waste constituents to the soils and waters of the State of Oklahoma -- to
remediate the IRW, including the lands, waters and sediments therein, and to pay all costs
associated with quantifying the amount of remediation and natural resource damages as well as
the amount of natural resource damages itself.
105.

By reason of the foregoing, the State of Oklahoma has also incurred, and will

incur in the future, damages, including special and direct damages, costs and expenses as a result
of the nuisance for which it is entitled to receive compensation and reimbursement from the
Poultry Integrator Defendants, jointly and severally.
106.

Exemplary and punitive damages should also be awarded based on the Poultry

Integrator Defendants’ reckless and intentional indifference to and disregard of the public's
health and safety in the IRW, including the lands, waters and sediments therein.
107.

The State of Oklahoma is further entitled to reasonable attorneys fees, court costs

and interest pursuant to 12 Okla. Stat. § 940.
E.

Count 5:

Federal Common Law Nuisance

108.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
109.

As a result of their poultry waste disposal practices, the Poultry Integrator

Defendants have intentionally carried on an activity that has caused and is causing an
unreasonable invasion of, interference with, impairment to, inconvenience to, annoyance to and

26

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 27 of 39

injury to the State of Oklahoma and the public's beneficial use and enjoyment of the IRW,
including the biota, lands, waters and sediments therein.
110.

Additionally, as a result of their poultry waste disposal practices, the Poultry

Integrator Defendants have intentionally carried on an activity that has significantly threatened to
cause and is significantly threatening to cause an unreasonable invasion of, interference with,
impairment to, inconvenience to, annoyance to and injury to the State of Oklahoma and the
public's beneficial use and enjoyment of the IRW, including the biota, lands, waters and
sediments therein.
111.

Furthermore, as a result of their poultry waste disposal practices, the Poultry

Integrator Defendants have intentionally carried on an activity that has caused and is causing
unreasonable and substantial danger to the public's health and safety in the IRW, including the
lands, waters and sediments therein.
112.

Additionally, as a result of their poultry waste disposal practices, the Poultry

Integrator Defendants have intentionally carried on an activity that has significantly threatened to
cause and is significantly threatening to cause unreasonable and substantial danger to the public's
health and safety in the IRW, including the lands, waters and sediments therein.
113.

Such conduct thereby constitutes a nuisance under applicable federal law. The

injuries caused thereby are substantial, tangible and continuing, and are both temporary and
permanent. The continuation of such conduct threatens irreparable harm.
114.

The Poultry Integrator Defendants have at all times pertinent to this complaint

known that an invasion of, interference with and impairment of the State of Oklahoma's and the
public's beneficial use and enjoyment of the IRW, including the biota, lands, waters and
sediments therein, as well as the creation of an unreasonable and substantial danger to the

27

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 28 of 39

public's health and safety, have resulted from, or have been substantially certain to result from,
their wrongful poultry waste disposal practices.
115.

By reason of the foregoing, the State of Oklahoma is entitled to equitable relief,

including but not limited to an injunction requiring each and all of the Poultry Integrator
Defendants to abate their pollution-causing conduct, to remediate the IRW, including the lands,
waters and sediments therein, and to pay all costs associated with quantifying the amount of
remediation and natural resource damages as well as the amount of natural resource damages
itself.
116.

By reason of the foregoing, the State of Oklahoma has also incurred, and will

incur in the future, damages, including special and direct damages, costs and expenses as a result
of the nuisance for which it is entitled to receive compensation and reimbursement from the
Poultry Integrator Defendants, jointly and severally.
117.

Exemplary and punitive damages should also be awarded based on the Poultry

Integrator Defendants’ reckless and intentional indifference to and disregard of the public's
health and safety in the IRW, including the lands, waters and sediments therein.
F.

Count 6:

Trespass

118.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
119.

The Poultry Integrator Defendants' poultry waste disposal practices have resulted

in an actual and physical invasion of and interference with the State of Oklahoma's possessory
property interest in the water in that portion of the Illinois River Watershed located within the
territorial boundaries of the State of Oklahoma which runs in definite streams, formed by nature,
over or under the surface. This actual and physical invasion of and interference with this

28

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 29 of 39

possessory property interest of the State of Oklahoma by the Poultry Integrator Defendants is
continuing.
120.

The Poultry Integrator Defendants have known that their poultry waste disposal

practices have resulted in or have been substantially certain to result in an actual and physical
invasion of and interference with this possessory property interest of the State of Oklahoma, and
thus have been and continue to be intentional.
121.

This actual and physical invasion of and interference with this possessory

property interest of the State of Oklahoma by the Poultry Integrator Defendants have been, and
continue to be, without authority or consent.
122.

Such conduct thereby constitutes a trespass under applicable state law. The

trespass and injuries caused thereby are substantial, tangible, continuing, and both temporary and
permanent. The continuation of such conduct threatens irreparable harm.
123.

By reason of the foregoing, the State of Oklahoma is entitled to equitable relief,

including but not limited to an injunction requiring each and all of the Poultry Integrator
Defendants to abate their pollution-causing conduct and the actual and physical invasion of and
interference with this possessory property interest of the State of Oklahoma, to remediate the
IRW, including the lands, waters and sediments therein so as to abate the actual and physical
invasion of and interference with this possessory property interest of the State of Oklahoma, and
to pay all costs associated with quantifying the amount of remediation and damages to the State
of Oklahoma's natural resources caused by the actual and physical invasion of and interference
with this possessory property interest of the State of Oklahoma as well as the amount of natural
resource damages itself caused by the actual and physical invasion of and interference with this
possessory property interest of the State of Oklahoma.

29

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 30 of 39

124.

By reason of the foregoing, the State of Oklahoma has also incurred, and will

incur in the future, damages, costs and expenses as a result of the trespass for which it is entitled
to receive compensation and reimbursement from the Poultry Integrator Defendants, jointly and
severally.
125.

Exemplary and punitive damages should also be awarded based on the Poultry

Integrator Defendants’ reckless and intentional indifference and harm to this possessory property
interest of the State of Oklahoma, as well as their reckless and intentional disregard of the
public's health and safety.
126.

The State of Oklahoma is further entitled to reasonable attorneys fees, court costs

and interest pursuant to 12 Okla. Stat. § 940.
G.

Count 7:

Violation of 27A Okla. Stat. § 2-6-105 & 2 Okla. Stat. § 2-18.1

127.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
128.

The Poultry Integrator Defendants, by and through their wrongful poultry waste

disposal practices, have caused pollution of the waters in the IRW within Oklahoma. Each
instance of this conduct constitutes a violation of 27A Okla. Stat. § 2-6-105.
129.

Additionally, the Poultry Integrator Defendants, by and through their wrongful

poultry waste disposal practices, have placed or caused to be placed poultry waste in locations
where it is likely to cause pollution of the air, land and waters in the IRW in Oklahoma. Each
instance of this conduct also constitutes a violation of 27A Okla. Stat. § 2-6-105.
130.

Additionally, the Poultry Integrator Defendants are subject to the jurisdiction of

the Oklahoma Department of Agriculture, Food, and Forestry pursuant to the Oklahoma
Environmental Quality Act and, by and through their wrongful poultry waste disposal practices,

30

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 31 of 39

have caused pollution of the land and waters within the IRW in Oklahoma. Each instance of this
conduct constitutes a violation of 2 Okla. Stat. § 2-18.1.
131.

Pursuant to 27A Okla. Stat. § 2-3-504 and 2 Okla. Stat. § 2-16, the State of

Oklahoma is entitled to an assessment of civil penalties against the Poultry Integrator Defendants
for each respective violation together with attorneys fees and costs associated with the collection
of such civil penalties, injunctive relief against the Poultry Integrator Defendants compelling
compliance with 27A Okla. Stat. § 2-6-105 and 2 Okla. Stat. § 2-18.1, respectively, and all such
other relief as may be provided for under the law.
H.

Count 8:

Violation of 2 Okla. Stat. § 10-9.7 and Oklahoma
Administrative Code § 35:17-5-5

132.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
133.

The Poultry Integrator Defendants' wrongful poultry waste disposal practices, by

and through those practices that occurred in Oklahoma, have caused, among other things, the
runoff of poultry waste into the waters in the IRW within Oklahoma, contamination of the waters
of the IRW within Oklahoma, and the creation of an environmental or public health hazard
within Oklahoma. Each instance of this conduct constitutes a violation of the Animal Waste
Management Plan criteria set forth in the Oklahoma Registered Poultry Feeding Operations Act,
2 Okla. Stat. § 10-9.7, and of the Oklahoma Administrative Code, § 35:17-5-5.
134.

Additionally, the Poultry Integrator Defendants, by and through their poultry

waste disposal practices that occurred in Oklahoma, have caused, among other things, discharges
or runoffs or releases of significant pollutants to the waters in the IRW in Oklahoma,
contamination of the waters of the IRW within Oklahoma, and the creation of an environmental
or public health hazard within Oklahoma. Each instance of this conduct also constitutes a

31

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 32 of 39

violation of the Animal Waste Management Plan criteria set forth in the Oklahoma Registered
Poultry Feeding Operations Act, 2 Okla. Stat. § 10-9.7, and of the Oklahoma Administrative
Code, § 35:17-5-5.
135.

Pursuant to 2 Okla. Stat. § 10-9.11, the State of Oklahoma is entitled to an

assessment of civil penalties against the Poultry Integrator Defendants for each violation together
with attorneys fees and costs associated with the collection of such civil penalties, injunctive
relief against the Poultry Integrator Defendants compelling compliance with the Animal Waste
Management Plan criteria set forth in the Oklahoma Registered Poultry Feeding Operations Act,
2 Okla. Stat. § 10-9.7, and with the Oklahoma Administrative Code, § 35:17-5-5, and all such
other relief as may be provided for under the law.
I.

Count 9:

Violation of Oklahoma Administrative Code, § 35:17-314

136.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
137.

The Poultry Integrator Defendants' wrongful poultry waste disposal practices, by

and through those practices that occurred in Oklahoma, have caused the runoff of poultry waste
resulting in a discharge to the surface and ground waters of the IRW within Oklahoma. Each
instance of this conduct, to the extent the poultry waste disposal practice occurred on land owned
or leased by the owner of a poultry growing operation subject to Oklahoma Concentrated Animal
Feeding Operation Act, 2 Okla. Stat. § 9-200, et. seq., constitutes a violation of the Animal
Waste Management Plan criteria set forth in the Oklahoma Administrative Code, § 35:17-3-14.
138.

Pursuant to 2 Okla. Stat. § 9-212, the State of Oklahoma is entitled to an

assessment of civil penalties against the Poultry Integrator Defendants for each violation together
with attorneys fees and costs associated with the collection of such civil penalties, injunctive

32

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 33 of 39

relief against the Poultry Integrator Defendants compelling compliance with the Animal Waste
Management Plan criteria set forth in the Oklahoma Administrative Code, § 35:17-3-14, and all
such other relief as may be provided for under the law.
J.

Count 10:

Unjust Enrichment / Restitution / Disgorgement

139.

The State of Oklahoma realleges and incorporates herein the foregoing allegations

of this Complaint, and further alleges as follows:
140.

The Poultry Integrator Defendants have engaged in improper poultry waste

disposal practices, as described above.
141.

By engaging in these improper poultry waste disposal practices, the Poultry

Integrator Defendants have avoided the costs of properly managing and disposing of their
poultry waste -- not only to their enormous economic benefit and advantage, but also at great
cost to the lands and waters comprising the IRW and at the expense of, and in violation of, the
State of Oklahoma's rights.
142.

In fairness and equity, these are costs that should have been borne by the Poultry

Integrator Defendants.
143.

The State of Oklahoma has thereby conferred a benefit upon the Poultry

Integrator Defendants.
144.

This benefit has not been voluntarily conferred upon the Poultry Integrator

Defendants by the State of Oklahoma.
145.

The Poultry Integrator Defendants have knowingly retained this benefit and have,

therefore, been unjustly enriched.
146.

There exists no other remedy at law that can adequately compensate the State of

Oklahoma for the entirety of the loss and damages it has suffered as a result of the Poultry

33

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 34 of 39

Integrator Defendants’ improper poultry waste disposal practices and pollution of the IRW,
including the lands, waters and sediments therein, and therefore the State of Oklahoma is entitled
to restitution from the Poultry Integrator Defendants. Further, the State of Oklahoma is entitled
to disgorgement of all gains the Poultry Integrator Defendants realized in consequence of their
wrongdoing.
VI.

PRAYER FOR RELIEF
Wherefore, the State of Oklahoma and, where applicable, the Oklahoma Secretary of the

Environment respectfully request that this Court enter judgment against the Poultry Integrator
Defendants, jointly and severally, on each of the claims alleged above and award the following
relief:
1.

All past monetary damages suffered by and all costs and expenses incurred by the

State of Oklahoma as a result of and in connection with the Poultry Integrator Defendants' past
wrongful conduct;
2.

A declaration that the Poultry Integrator Defendants are liable for all future

monetary damages suffered by and all costs and expenses incurred by the State of Oklahoma as a
result of and in connection with the continuing effects of the Poultry Integrator Defendants' past
wrongful conduct;
3.

A permanent injunction requiring each and all of the Poultry Integrator

Defendants to immediately abate their pollution-causing conduct in the IRW, to remediate the
IRW, including the lands, waters and sediments therein, to take all such actions as may be
necessary to abate the imminent and substantial endangerment to the health and the environment,
and to pay all costs associated with assessing and quantifying the amount of remediation and
natural resource damages as well as the amount of natural resource damages itself;

34

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 35 of 39

4.

Restitution in an amount sufficient to make the State of Oklahoma whole for the

loss and damages it has suffered on account of the Poultry Integrator Defendants' improper
poultry waste disposal practices and pollution of the IRW, including the lands, waters and
sediments therein, as well as disgorgement of all gains the Poultry Integrator Defendants realized
in consequence of their wrongdoing;
5.

Punitive and exemplary damages, to the maximum extent allowable under the

6.

Statutory penalties, to the maximum extent allowable under the law;

7.

Prejudgment interest;

8.

All attorneys fees and costs of suit (including but not limited to court costs, expert

law;

and consultant costs, and litigation and investigative expenses); and
9.
VII.

All such other and further relief as is just and appropriate.

JURY DEMAND
The State of Oklahoma requests a trial by jury on all issues so triable.
Respectfully submitted,
W.A. Drew Edmondson, OBA No. 2628
Attorney General
Kelly H. Burch, OBA No. 17067
J. Trevor Hammons, OBA No. 20234
Tina L. Izadi, OBA No. 17978
Assistant Attorneys General
State of Oklahoma
313 N.E. 21st Street
Oklahoma City, OK 73105
(405) 521-3921

35

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 36 of 39

/s/M. David Riggs
M. David Riggs, OBA No. 7583
Joseph P. Lennart, OBA No. 5371
Richard T. Garren, OBA No. 3253
Douglas A. Wilson, OBA No. 13128
Sharon K. Weaver, OBA No. 19010
Robert A. Nance, OBA No. 6581
D. Sharon Gentry, OBA No. 15641
Riggs, Abney, Neal, Turpen
Orbison & Lewis
502 West Sixth Street
Tulsa, OK 74120-2421
(918) 587-3161
James Randall Miler, OBA No. 6214
Louis Werner Bullock, OBA No. 1305
Miller Keffer & Bullock
222 S. Kenosha
Tulsa, OK 74120-2421
(918) 743-4460
David P. Page, OBA No. 6852
Bell Legal Group
222 S. Kenosha
Tulsa, OK 74120
(918) 398-6800
Frederick C. Baker
(admitted pro hac vice)
Elizabeth C. Ward
(admitted pro hac vice)
Elizabeth Claire Xidis
(admitted pro hac vice)
Lee M. Heath
(admitted pro hac vice)
Motley Rice, LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29465
(843) 216-9280
William H. Narwold
(admitted pro hac vice)
Motley Rice, LLC
20 Church Street, 17th Floor
Hartford, CT 06103
(860) 882-1676
Attorneys for the State of Oklahoma
36

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 37 of 39

CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of July, 2007 the foregoing document was
electronically transmitted to the following:
Frederick C Baker fbaker@motleyrice.com, mcarr@motleyrice.com;
fhmorgan@motleyrice.com
Michael R. Bond
Vicki Bronson

michael.bond@kutakrock.com, amy.smith@kutakrock.com
vbronson@cwlaw.com, lphillips@cwlaw.com

Paula M Buchwald

pbuchwald@ryanwhaley.com

Louis Werner Bullock

lbullock@mkblaw.net, nhodge@mkblaw.net; bdejong@mkblaw.net

W.A. Drew Edmondson fc_docket@oag.state.ok.us, drew_edmondson@oag.state.ok.us;
suzy_thrash@oag.state.ok.us.
Delmar R Ehrich
John R Elrod

dehrich@faegre.com, etriplett@faegre.com; qsperrazza@faegre.com

jelrod@cwlaw.com, vmorgan@cwlaw.com

Bruce Wayne Freeman

bfreeman@cwlaw.com, lclark@cwlaw.com

D. Richard Funk rfunk@cwlaw.com
Richard T Garren

rgarren@riggsabney.com, dellis@riggsabney.com

Dorothy Sharon Gentry

sgentry@riggsabney.com, jzielinski@riggsabney.com

Robert W George robert.george@kutakrock.com, sue.arens@kutakrock.com;
amy.smith@kutakrock.com
James Martin Graves

jgraves@bassettlawfirm.com

Tgrever@lathropgage.com
Jennifer Stockton Griffin

jgriffin@lathropgage.com

John Trevor Hammons thammons@oag.state.ok.us, Trevor_Hammons@oag.state.ok.us; Jean
_Burnett@oag.state.ok.us
Lee M Heath

lheath@motleyrice.com

Theresa Noble Hill

thillcourts@rhodesokla.com, mnave@rhodesokla.com

37

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 38 of 39

Philip D Hixon

phixon@mcdaniel-lawfirm.com

Mark D Hopson

mhopson@sidley.com, joraker@sidley.com

Kelly S Hunter Burch fc.docket@oag.state.ok.us, kelly_burch@oag.state.ok.us;
jean_burnett@oag.state.ok.us
Stephen L Jantzen sjantzen@ryanwhaley.com, mantene@ryanwhaley.com;
loelke@ryanwhaley.com
Bruce Jones bjones@faegre.com, dybarra@faegre.com; jintermill@faegre.com;
cdolan@faegre.com
Jay Thomas Jorgensen

jjorgensen@sidley.com

Raymond Thomas Lay

rtl@kiralaw.com, dianna@kiralaw.com

Nicole Marie Longwell

Nlongwell@@mcdaniel-lawfirm.com

Archer Scott McDaniel

smcdaniel@mcdaniel-lawfirm.com

James Randall Miller

rmiller@mkblaw.net, smilata@mkblaw.net; clagrone@mkblaw.net

Charles Livingston Moulton Charles.Moulton@arkansasag.gov,
Kendra.Jones@arkansasag.gov
Robert Allen Nance

rnance@riggsabney.com, jzielinski@riggsabney.com

William H Narwold

bnarwold@motleyrice.com

George W Owens

gwo@owenslawfirmpc.com, ka@owenslawfirmpc.com

David Phillip Page

dpage@edbelllaw.com, smilata@edbelllaw.com

Robert Paul Redemann

rredemann@pmrlaw.net, scouch@pmrlaw.net

Melvin David Riggs

driggs@riggsabney.com, jsummerlin@riggsabney.com

Randall Eugene Rose

rer@owenslawfirmpc.com, ka@owenslawfirmpc.com

Robert E Sanders

rsanders@youngwilliams.com,

David Charles Senger
Colin Hampton Tucker

dsenger@pmrlaw.net, scouch@pmrlaw.net; ntorres@pmrlaw.net
chtucker@rhodesokla.com, scottom@rhodesokla.com

38

 Case 4:05-cv-00329-GKF-PJC Document 1215 Filed in USDC ND/OK on 07/16/07 Page 39 of 39

John H Tucker

jtuckercourts@rhodesokla.com, lwhite@rhodesokla.com

Elizabeth C Ward

lward@motleyrice.com

Sharon K Weaver

sweaver@riggsabney.com, lpearson@riggsabney.com

Timothy K Webster

twebster@sidley.com, jwedeking@sidley.com

Terry Wayen West

terry@thewestlawfirm.com,

Edwin Stephen Williams
Douglas Allen Wilson

steve.williams@youngwilliams.com
Doug_Wilson@riggsabney.com, pmurta@riggsabney.com

jwisley@cwlaw.com, jknight@cwlaw.com
Elizabeth Claire Xidis

cxidis@motleyrice.com

Lawrence W Zeringue

lzeringue@pmrlaw.net, scouch@pmrlaw.net

I hereby certify that on this 16th day of July, 2007 the foregoing document was mailed via
U.S. Postal Service to the following:
Thomas C. Green
Sidley, Austin, Brown & Wood, LLP
1501 K. Street NW
Washington, DC 20005
C. Miles Tolbert
Secretary of the Environment
State of Oklahoma
3800 North Classen
Oklahoma City, OK 73118
Victor E Schwartz
Cary Silverman
Shook Hardy & Bacon LLP (Washington DC)
600 14th Street NW, Suite 800
Washington, DC 20005
/s/M. David Riggs
M. David Riggs

39