Spring Creek Coalition suit against Department of Ag poultry farm permits moves forward

Saying officials were “deceptive” in a response to concerned residents, a state district court judge this week said Spring Creek Coalition’s fight with the Oklahoma Department of Agriculture Food and Forestry deserves to be heard in court.

Since 2018 Northeast Oklahoma residents have complained that the state issues permits for construction and expansion of poultry “mega farms”with no public notice and no answers to potential pollution issues aired by neighbors.

After state officials argued their hands are tied by state statutes and that the volunteer group has no standing to represent individual residents, Delaware County District Court Judge Dave Crutchfield ruled Tuesday that the issue needs to be explored in court.

“It’s not the ‘win’ but it does mean we live to fight another day,” said Matt Alison attorney with Indian & Environmental LawGroup in Tulsa.

An email inquiry to Ag Department attorneys was not immediately returned Thursday. The state agency generally does not comment on pending litigation.

The suit claims that environmental concerns need to be addressed and that residents are owed prior public notice and an opportunity to protest any application or renewal of Ag Department operating permits for poultry farms in the Spring Creek watershed.

“That’s always been the problem,” said Beth Rooney, the coalition’s immediate past president. “People didn’t know anything until there was cement laid right next door to their homes for a giant new poultry operation.”

The issue hit a fever pitch in June 2018 when contractors broke ground for barns that would house 300,000 broilers near the Oaks Indian Mission at the headwaters of a Spring Creek tributary.

The Cherokee Nation stepped in to purchase that particular property from the farmer to preserve the land, but the issue brought out dozens of other landowners enraged by a sudden saturation of hundreds of new poultry farms housing millions more broilers across the region.

Spring Creek Coalition, a group of landowners, and caretakers of, what is recognized as one of the state’s most pristine waterways, sued the Ag Department. They cited a lack of public notice, no recourse to challenge the building permits, and a lack of attention to environmental worries.

Ag Department officials have consistently said their hands are tied by guidelines set in the 1998 Registered Poultry Feeding Operations Act and moved to have the case dismissed. Farm applications that check all the boxes for the Poultry Act simply must be approved, according to department officials.

Department attorneys also argued the volunteer interest group did not have standing because it could not represent individual plaintiffs, and further argued the group only raised “potential environmental damages” and could cite no specific damages suffered.

The judge agreed with Alison, who raised a precedent that supports the group’s right to sue on behalf of its members and further noted that the potential for pollution issues was obvious.

“It should be intuitively obvious that raising hundreds of thousands of chickens in a confined space creates a high ‘possibility’ of polluting the air and water of the areas around such operations,” the judge wrote.

The coalition established water quality testing standards with 24 consecutive months of tests at multiple locations starting in July 2020. Quarterly tests are performed now, Rooney said.

The certified tests showed nutrient loading, a term for increasing presence of materials such as nitrogen and phosphorus, is happengotiate ing in the stream and that eColi bacteria also are present “especially in upper tributaries,” Rooney said.

Department of Ag counsel also argued that Spring Creek residents only filed protest letters and failed to “request a declaratory ruling,” an Ag Department process that checks issues with a magistrate serving as a hearing examiner.

Crutchfield again agreed with Allison’s contention that the process offered no relief, regardless of the approach.

“General Counsel (Teena) Gunter’s email to Matthew Allison(sic) on December 30, 2020, was deceptive,” the judge wrote. “She may not have intended to deceive but her email presents Spring Creek with false alternatives—you can either send your letter of protest to me or use the Declaratory Action under OAC 35:1-51. She didn’t tell Allison that if you chose to send me your letter of protest, I’ll throw it in the trash and forget the whole thing…”

Given that it appeared either administrative approach would end the same, the judge ruled that moving forward through the courts was the only logical option.

Alison said the parties now will work to set a future hearing date.

Kelly Bostian is an independent writer working for the Oklahoma Ecology Project, a 501c3 non-profit dedicated to in-depth reporting about environmental issues for Oklahomans.