Litter suit’s parties get eager for ruling
Posted on Thursday, May 1, 2008
A U. S. District Court judge has had 50 days to make a decision on granting a preliminary injunction to ban spreading poultry litter on farm fields in the Illinois River watershed, leaving some to wonder what’s taking so long.
Farmers, lawyers and others interested in Judge Greg Frizzell’s decision have waited since March 12 to learn whether he’ll grant Oklahoma Attorney General Drew Edmondson’s request to stop spreading the litter.
“Judges sit and listen to Nobel lawyers slug it out all the time,” said Patrick Patenteau, senior counsel at the Environment and Natural Resources Law Clinic at the Vermont Law School, who uses the complex debate over the Illinois River issue to teach students about interstate waterquality disputes. “At the end of the day, judges have to decide who to believe.
“ He’s had enough time.”
Legal experts think several factors could slow Frizzell, including his inexperience in federal court, the complicated aspects of environmental law that judges rarely face, and his heavy criminal caseload.
He could also be slow because he wants a decision that’s unlikely to be overturned if it’s appealed to the 10 th U. S. Circuit Court of Appeals in Denver.
The attorney general’s office and attorneys working for the eight poultry companies sued by Edmondson in 2005 wouldn’t answer questions about why a decision has taken 50 days so far after a nine-day hearing in Tulsa.
Frizzell declined comment through a courtroom deputy.
Edmondson, who requested the injunction in November, said he favored a January hearing because he could head off the spreading of poultry litter on farm fields that usually occurs in the spring.
“We know a decision is coming,” said Charlie Price, an Edmondson spokesman. “We appreciate that it’s a difficult issue, and the judge has a lot of evidence to sift through and testimony to review.”
To get the moratorium, Edmondson had to prove poultry litter is “solid waste” as defined in the federal Resource Conservation and Recovery Act of 1976. He also had to show litter threatens human health.
Poulty litter is a combination of bird manure and wood chips or rice hulls.
The Oklahoma portion of the Illinois River, a state-designated “scenic river,” is popular for canoeing and fishing.
Andrew Coats, dean of the University of Oklahoma College of Law, said the 50 days hints that Frizzell is likely to deny the injunction.
“It seems to me that the judge has already decided that there’s no immediate concern,” Coats said. “Otherwise, he would have decided from the bench that day (March 12 ). When time is of the essence, judges seldom take a long time in deciding.
“ It seems to me that had he been moved to see immediate danger, he would have acted swiftly.”
Two former federal judges said, however, 50 days isn’t that long.
“The judge is probably writing a lengthy opinion with findings of fact and conclusions of law so that the parties can decide whether to appeal and on what grounds and so that the appellate court will have a fully developed record,” said an e-mailed response from David Levi, the chief federal judge for the Eastern District of California before being named dean of the Duke University Law School last year.
The 50 days “doesn’t tell you anything about the likely outcome,” Levi wrote.
Paul Cassell, who spent five years as a Utah federal judge and then began teaching at the University of Utah last year, said it may be the complexities of the case that’s slowing Frizzell.
Judges often look to the decisions of other federal judges for guidance about what they should do, but aspects of the injunction include issues of so-called “first impression.” For instance, no federal court has been asked to rule whether poultry litter is solid waste under the Resource Conservation and Recovery Act.
“It’s not just grab a law book and say there’s a similar case,” Cassell said. “It just takes time to wade through the law books. There’s nothing directly on point.”
Moreover, federal judges typically have more than 300 cases on their dockets, and the criminal cases take priority because defendants are often in jail, Cassell said.
The Speedy Trial Act of 1974 establishes time requirements for the disposition of criminal cases. Courts give them priority as the act normally allows 70 days from a defendant’s arrest to when a trial begins.
“There’s a constitutional right to a speedy trial,” said Mark Davis, an attorney who’s director of the Tulane Institute on Water Resources Law and Policy at Tulane University in New Orleans. “There’s no constitutional right to have your preliminary injunction ruled on quickly.”
Frizzell was given 202 cases, including Edmondson’s lawsuit, when he moved from the state court to the federal court in February 2007.
“Litigators tend to think their case is the most important one,” Cassell said. “It’s not like the world stops because one big case hits the docket.”
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