Participants await decision in Eastern Shore poultry runoff suit
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After three years of litigation and three weeks in a federal courthouse, the case against Eastern Shore chicken growers, Alan and Kristin Hudson, and Perdue Farms, Inc., is not yet decided.
The defense rested its case on Oct. 22. Lawyers for Hudson and Perdue argued that the Waterkeeper Alliance, a New York-based federation of Riverkeepers, did not prove that the Hudsons violated the Clean Water Act. They also argued that Perdue was not responsible for any pollution found in the farm's ditches because the Hudsons had cows and that they could have been a likely source of any high fecal coliform counts found on the farm.
Ever since the Waterkeepers tested a ditch on the Hudson farm in 2009 and found fecal coliform counts of more than 100 times the allowable limit, the question of whether the Hudsons violated the Clean Water Act and what to do about it has caused friction between environmentalists, politicians and farmers. Many of them are anxious for U.S. District Court Judge William Nickerson to make his decision, but they will have to wait.
All sides were to submit post-trial statements to the judge by Nov. 14 to sum up the findings of facts and conclusions of law in the case along with case law supporting their conclusions. On Nov. 21, each side was to turn in a response to the others' statements. On Nov. 30, the judge is scheduled to hear closing statements.
Nickerson can make a ruling anytime after Nov. 30.
The end of the three weeks of trial testimony prompted statements from all sides declaring relief that the trial was over, and, in the case of Perdue, confidence that they will emerge victorious.
"After almost three years, this case came down to the proposition that any chicken house with a door or a fan is a source of pollution and therefore likely in violation of the Clean Water Act. To make this ridiculous argument, the Waterkeeper Alliance, Assateague Coastal Trust and University of Maryland Environmental Law Clinic put a farm family through hell, drove a wedge between farmers and environmentalists, and wasted taxpayer resources," the company said in a statement.
Hudson, who has declined to talk to reporters throughout the trial, issued a one-paragraph statement.
"Kristin and I are relieved that the trial is over so we can go back to the business of running our farm and raising our children. We are very grateful to the members of the community and the farmers from around the country who supported us during this ordeal. We look forward to the judge's ruling so we will be able to put this nightmare completely behind us," it said.
The Assateague Coastal Trust, which started the case when its Coastkeeper, Kathy Phillips, discovered the high counts in a ditch on the farm, sought to remind the public that the case was never about going after a small family farmer. It was always about Perdue and its fellow integrators, chicken companies that control nearly every aspect of the production of birds on the farms it contracts with on the Delmarva Peninsula — except the manure the chickens generate, which it leaves for the farmer to handle.
"Assateague Coastal Trust initiated (this case) to address the continuing pollution found coming off the Hudson's farm in more than a dozen water samples taken over a seven-month period. We also initiated it because we think poultry integrators have the duty to share the burden created by the massive amount of manure generated by the flocks they grow. It's fundamentally unfair to leave individual farmers with the nearly impossible job of handling the manure in an environmentally responsible way," the statement read.
The trust also contended that the case shined a light on the state's inadequate nutrient management law. Hudson told the Maryland Department of Agriculture that he had a nutrient management plan for several years when he didn't have one. He also testified he did not know how much manure his chickens generated, where he spread most of it and how much could have gotten into waterways.
Jane Barrett, director of the University of Maryland Environmental Law Clinic, and Chris Nidel, of Nidel Law Firm, tried much of the case for the Waterkeepers. After court, they said they were looking forward to the final oral arguments.
"We feel we were able to present a very strong case," Barrett said.
Barrett said the break in the schedule and the long window for a verdict is typical in civil cases, where the judge has reams of evidence to consider before making a decision. In this case, the Waterkeepers have provided five, 5-inch binders that include records, deposition transcripts and expert testimony.
The case cost the Hudson family hundreds of thousands of dollars in legal bills, and nearly cost the law clinic its state funding. Maryland Gov. Martin O'Malley told the law school's dean that the clinic's decision to take the case was a waste of taxpayer resources, and that the clinic would be more true to its mission if it represented the Hudsons.
Some environmental groups have said the case may hobble their ability to work with farmers to reduce runoff. Chicken farmers worry they could be the next target; to that end, many of them have made generous donations to the Hudson family though Save Farm Families, a group Perdue and the Maryland Farm Bureau set up.
"We want to work with Riverkeeper groups, but we want to do it in a reasonable and cooperative way," said Andrew McLean, president of Delmarva Poultry Industries and a chicken farmer in Queen Anne's County. "We've made tremendous strides over the last 30 years, but it always works better with a carrot than a stick."
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