Last week, U.S. District Judge William Nickerson ruled that Perdue Farms and Eastern Shore poultry farmer Alan Hudson were not entitled to the $3 million they had requested in attorney's fees stemming from the 2009 poultry lawsuit, Waterkeeper Alliance vs. Alan Hudson et al.
The judge ruled that, despite his many problems with the case, Perdue and Hudson could not prove that the Waterkeepers' claim was "frivolous, unreasonable, or without foundation." You can read the full decision here:
Perdue and Hudson had asked for their fees - $2.5 million for the poultry company, and $500,000 for Hudson - after they decisively won the case in a harshly worded decision that came down just before Christmas of last year. The judge had a lot of criticisms for the way the Waterkeeper Alliance conducted its case. But, Nickerson said, those concerns did not rise to the standard of frivolous, unreasonable and without foundation.
To quote the judge: “For an environmental group to target its efforts on what it perceives as a major source of pollution is not unusual, nor unreasonable, nor a sign of bad faith. If done well, it could function as an effective use of that organization’s resources.”
It was one of very few victories for the New York- based environmental group, which Nickerson excoriated in previous rulings for, among other things, declaring a pile on the Hudson property was chicken manure when it was not. And the judge wasn't the only one with criticisms. Maryland Gov. Martin O'Malley, top-ranking officials at the Department of Agriculture, farmers, farm interest groups and even some environmentalists had problems with this particular case.
Earlier this week, the group Center Maryland posted their second video interview with George Ritchie, the Gordon Feinblatt attorney who represented Alan Hudson during the three-week trial in Baltimore. Center Maryland's principal backers are Steve Kearney, a former top advisor to Gov. Martin O'Malley, and Damian O'Doherty, a former aide to Baltimore County executive Judge Jim Smith. Rounding out the group is Howard Libit, one of my former colleagues at The Sun, and Martin Knott Jr., an entrepreneur whom O'Malley appointed to serve on several boards.
Center Maryland's mission is, according to its web site, "to draw people back to the center – to find common ground on common sense policies where we can make progress. Center Maryland isn’t about people or posturing – it is about creating a platform to advance reasonable and responsible ideas. "
In the video, which you can find HERE, O'Doherty interviews Ritchie in what appears to be a conference room overlooking Baltimore's Harbor.
First question out, O'Doherty asks: "You all are playing sort of an Atticus Finch role for the Maryland farmer? Talk about the successful litigation you've had against the sort of fringe Waterkeepers Alliance."
(Atticus Finch, in case you are scurrying for Wikipedia to refresh your memory, is the righteous lawyer in Harper Lee's novel To Kill A Mockingbird who defends an African-American man named Tom Robinson who is falsely accused of raping a white woman.)
O'Doherty then calls the case "one of the great legal fiascos of the last 20 years," and adds: "You gotta feel proud that you could protect that farm family."
Ritchie takes the cue, responding with: "Here, this case really was about justice in the true ‘To Kill a Mockingbird’ sense."
At this point, we cut away from the city view to pictures of Hudson with his kids on a tractor.
Then, O'Doherty calls this a wake-up call for environmentalists - they can either side with "credible, bridge-building partners like the Chesapeake Bay Foundation…or they can be stained and tarnished by associating themselves with these carpetbagger activists that are coming in and trying to shut down Maryland agriculture."
O'Doherty tells Ritchie he thinks it was a "show trial" because the plaintiffs did not try hard enough to settle.
Ritchie responds with this:
"It did not result in anything positive for the Bay, which purportedly had been their goal all along."
O'Doherty then talks about "evidence of a continuing…loss of perspective, sort of a detachment from reality," because University of Maryland Environmental Law Clinic attorney Jane Barrett continues to defend her position. (Barrett was the lead attorney arguing the case in federal court on behalf of the Waterkeeper Alliance.) He then criticizes the Waterkeepers, saying: "I am a communications guy, but boy, it was a very acrobatic spin to hear the riverkeepers say that they applaud the decision."
That would be the judge's decision NOT to award $3 million to Perdue and Hudson in attorney's fees.
Finally, O'Doherty mentions the $300,000 that Shore legislators slipped into budget negotiations at the end of the General Assembly session last year. The funds were to help the Hudson family cover their legal fees if all the fundraising efforts fell short, so the Hudsons wouldn’t have to pay out of their own pocket. Hudson’s Eastern Shore neighbors and the poultry industry raised hundreds of thousands of dollars for his defense through chicken dinners and other fundraisers. The Waterkeeper Alliance, O'Doherty says, is "talking about suing more farmers, suing more families. We gotta wonder if the $300,000 the state set up will be enough to defend the next farm family."
It's a 10-minute clip, and there are other highlights. Like when O'Doherty says farmers care more about the Bay than anyone else because they're the ones taking their kids out on boats. (I must hang out with the wrong farmers, because none of the ones I know have boats.) And when he talks about the $300,000 not being enough to help all the families that might get sued - even though the fund was set up only to help the Hudsons, and it’s not clear the Waterkeepers are planning to sue anyone else after this defeat.
The problem is not that this firm with close ties to O'Malley is criticizing the Waterekeeper Alliance. As I said before, many people from all quarters - farmers, environmentalists, longtime Shore residents, the governor, you name it - had problems with this case. The Bay Journal chronicled those issues throughout the case and in our poultry post-mortem, which you can read here.
The problem is that some of O’Doherty’s facts are debatable, and several of his comparisons that are dubious:
1. George Ritchie is not Atticus Finch
George Ritchie may have formed a bond with his client, and he may have become more emotionally involved with the Hudson family than he gets with, say, defending trade secrets. But let's not forget that this case is about defending a man accused of polluting the Chesapeake Bay. It was not something he took on pro bono; in fact, his legal fees, topping more than $500,000, have been a major issue in this case. Unlike Atticus Finch, George Ritchie was not defending an innocent black man in the late 1930s accused of raping a white woman, a man who had nowhere else to turn.
Ritchie himself says on his web site, the Waterkeepers were advancing a novel theory of liability - namely, that large poultry companies were responsible for any pollution their growers generated on their family farms. Judges do not typically like novel theories. Perdue lawyer Michael Schatzow warned the judge that a ruling in favor of the Waterkeepers would end agriculture as we know it on the Shore. No judge will do that unless the plaintiffs bring a darn good case. And, as Nickerson noted, this case as presented did not meet that threshold.
None of that changes the fact that Ritchie is an excellent lawyer. From what I saw in covering the trial, Alan Hudson got his money's worth. But let's keep some perspective here.
2. Alan Hudson is not Tom Robinson
Alan Hudson is a family farmer, a father, a husband, a hard worker. No one is disputing that. But no one is also disputing that, in a 2009 test, the ditch downstream from his farm showed e-coli and fecal coliform counts that were more than 1,000 times the legal limit, not to mention elevated levels of nitrogen and phosphorus. Hudson himself testified that his record keeping was "not the best," and for five years he did not have a nutrient management plan in place on his farm, despite a law requiring him to do so. He had not kept track of the manure he'd spread on the farm until 2008. He had not conducted a soil phosphorus test, even though the state requires him to do one every three years. He allowed the few dozen cows he kept to roam and defecate in his cover crop - a crop that the government paid him to plant in hopes of reducing nitrogen and phosphorus. (Judge Nickerson noted that it was probably the cows that caused the pollution in the ditch, though that is not covered by the Clean Water Act, which was the basis for the suit.)
During one of my many interviews with agriculture officials - many of whom openly supported Hudson during this four-year lawsuit - they downplayed these mistakes as paperwork violations. Clearly, they still didn't believe these violations warranted an "activist" group showing up and filing a lawsuit.
But let's stop a minute here. We have a problem in the Chesapeake Bay with too much phosphorus. If a farmer doesn't know how much he's putting on, and isn't attempting to account for it, that's not a paperwork problem. It's a real problem.
I've been on a lot of farms in 10 years of covering the Chesapeake Bay. The farmers I know are conscientious, good people. They usually keep a thick binder in their tractor, and if you ask, they'll open it up and show it to you. In it are reams of information - recent soil applications, phosphorus tests, soil ratios, whatever you want to know. If they don't do this, they say, there's a risk they could be polluting the Bay, and that is the last thing they want to do.
3. Carpetbagger activists did not start this case; and the Waterkeepers are not carpetbagger activists.
The fact that it is the Waterkeeper Alliance that filed the lawsuit is the gift that keeps on giving to critics of the case. What better shorthand for the elite than a group that Robert Kennedy Jr. himself founded? The Alliance might want to rethink that ski retreat it holds every year; the farmers relished posting that on the SaveFarmFamilies website.
But it wasn't the Waterkeeper Alliance in New York that started this case. It was Kathy Phillips, the Assateague Coastkeeper. She is a member of the Waterkeeper Alliance, which is based in New York. But she is based in the Coastal Bays of Ocean City as well as in the Pocomoke River, which she patrols frequently. She is a Marylander. She filed the case on behalf of other Marylanders - people who kayak, canoe, and swim in the Pocomoke River.
Eventually, the judge removed Phillips from the case on a technicality, and that left the out-of-staters as the main client. But it did start with a local activist working on a local issue.
The Waterkeeper Alliance is a loose confederation of riverkeeper groups. They license the name and get support from the New York group, but otherwise, they're independent. The Chesapeake Riverkeepers I know have done some great work. The best ones are out on the rivers, spotting pollution, filing objections to permits for projects that would pollute the waterways, challenging the regulators and the status quo, safeguarding the resource not for their own personal gain but for the public to enjoy. They live here - on the Gunpowder, the Choptank, the Patuxent, and two dozen other rivers in our watershed. Again, it was Assateague Coastkeeper Kathy Phillips who started this case.
4. Applauding a decision that saves you $3 million is not acrobatic spin, but a reasonable reaction
It's unusual, but not unprecedented, for judges to award fees in environmental litigation such as this case. Judge Nickerson said so himself - in an attempt to get the parties to settle.
The fact is, had Nickerson awarded the fees, it would have been a devastating blow to the Waterkeeper Alliance. But it would have also scared other environmental groups who might want to sue over things like water pollution and contamination in other places. However you feel about this particular case, litigation is a powerful tool for environmental justice. Handicapping that could have all kinds of ramifications. Just ask the Chesapeake Bay Foundation, one of those "bridge-building" environmental groups that has sued, among others, steel companies, tobacco companies and the federal government.
5. The case will not go down as a "great legal fiasco"; rather, it highlighted defects in existing laws and regulations.
We have recounted the many mistakes made in this case in our articles. It certainly could have gone better for the Waterkeepers. But it is not a total fiasco if we are able to learn something from it.
Here's something I learned: if the pollution on a farm comes from 10 cows, or six pigs, or 30 goats, it apparently is OK. But if it comes from thousands of chickens, it's not.
Under the Clean Water Act, the pollution had to come from Alan Hudson's 80,000 chickens, not his 100 or so cows, to be a violation. The judge listened to "a battle of experts" and decided cows doing their business in the field was a much more likely culprit than dust or trace amounts of manure on someone's shoe. Hudson's chickens, under the law, are a Concentrated Animal Feeding Operation, or CAFO. But his cows are not part of the CAFO, and thus not governed by the Clean Water Act.
So where do you go from there? Is it okay to discharge alarmingly high levels of e.coli and fecal coliform into state waterways if they come from a cow? The stream doesn't care what the source is. The water quality is still degraded.
I asked legal experts in the region, and some admitted they really hadn't pondered it until this case. Perhaps the Rivers and Harbors Act, which predates the Clean Water Act, could protect waterways from other sources of pollution. Perhaps our state regulators will start thinking about this issue and figure out a state law that can apply, if there isn't one already.
6. The Hudson case did result in something positive for the Bay.
As I said before, the plaintiffs made a lot of mistakes. But the farmers took notice of the Waterkeepers' aggressive tactics. They started to follow their nutrient management plans more closely, and stockpile manure less. Some farmers are even working with riverkeepers, like the Choptank’s Drew Koslow, to secure money and put in ditch-management structures to control runoff. Some of them are doing this because they are terrified of being sued. That's too bad. But whatever it is that's making them more aware can only be a positive for the Chesapeake Bay.