(CN) – The 10th Circuit upheld a decision preventing the Cherokee Nation from intervening in a lawsuit over watershed pollution from industrial chicken farms.
The state of Oklahoma sued Tyson Foods and affiliates in 2005 over alleged pollution from poultry waste into the Illinois River Watershed, encompassing 1 million acres on the border between Oklahoma and Arkansas.
Waste from industrial poultry farms can contain unwanted chemicals and harmful microbes. Oklahoma sought injunctive relief and monetary compensation for allegedly improper use of the waste as fertilizer, which is produced in the hundreds of thousands of tons per year.
Tyson moved to dismiss, claiming the case shouldn’t proceed without involving the Cherokee Nation, which also has an interest in the watershed. The tribe, in the course of separate discussions with Tyson and Oklahoma, had asserted claims of historical ownership over the watershed.
Oklahoma then struck a deal with the tribe to represent its interests in the Tyson lawsuit. The trial court found this agreement to be statutorily invalid and dismissed the state’s damages claim.
The Cherokee Nation then moved to intervene, unsuccessfully.
The Denver-based 10th Circuit upheld the lower court’s denial of the motion to intervene, pointing out that the tribe was aware of the litigation for four years, but refused to join until 19 days before trial.
And because the tribe’s interests were either never represented by the state or were still being adequately represented by the state, the court reasoned, there was no need for the tribe to intervene.
Participation as a “friend of the court” should suffice, Judge Harris Hartz wrote for the 2-1 majority.
Tyson would be unduly burdened by allowing the Cherokee Nation to intervene, as this would involve delays, the appellate court continued. Tulsa had already set up “war rooms” in Tulsa, according to their own statements.
Judge Deanell Tacha dissented, writing that the court used an incorrect standard of review, and that a short continuance wouldn’t prejudice Tyson.