When a federal judge hears arguments in the so-called "chicken lawsuit" this April, it won't be just the chicken growers who will be paying attention.
The case, which the University of Maryland Environmental Law Clinic filed in late 2009 on behalf of the Waterkeeper Alliance and the Assateague Coastkeeper against the Alan and Kristin Hudson Farm, a Berlin, MD, chicken grower, and Perdue Farms, a national poultry integrator, could have national implications for the way poultry companies do business.
The plaintiffs contend that the Hudson farm violated the Clean Water Act by discharging pollutants into waters of the state. It also claims that Perdue is responsible for this pollution and that the company has also violated the Clean Water Act because it failed to put in place and enforce waste-control policies for its contractors.
"It's a very important lawsuit, as a test case," said Russell Stevenson, a longtime Washington, DC, lawyer and founder of the Chesapeake Legal Alliance. "If a large entity like Perdue dictates how the farms are run, and effectively controls the economics of the operation, you'd think that entity would be in the best position to make sure the Clean Water Act is complied with."
The case has also grabbed public attention because of a hotly worded letter Gov. Martin O'Malley wrote to the law school. In the letter, O'Malley criticized the school for allowing its law clinic to be involved - a position the poultry industry has seized upon in its public relations campaign.
Currently, Perdue contracts with growers on the Delmarva Peninsula to grow chickens. Perdue owns the birds, supplies the feed, tells the growers how much to feed and at what temperature to keep the houses. It also conducts inspections to make sure its protocols are being followed. This integrated business model is the one that most large-scale poultry growers follow. But Perdue doesn't own the waste produced during the growing process, and it has contended it is not responsible for the way its individual growers manage their farms.
Perdue asked the judge to dismiss it from the lawsuit, claiming it did not pollute the state's waters. But Judge William Nickerson declined to remove the chicken company.
"Had the EPA and MDE (Maryland Department of the Environment) wanted to preclude integrators from liability for the Clean Water Act violations, they could have written their regulations to make that explicit, but they did not do so," the judge wrote. "Instead, they have acknowledged that an integrator may be held liable for its CAFO's (concentrated animal feeding operations) violations."
Michael Schatzow, Perdue's attorney in the case, said the company has filed another motion with the court saying that it can only be held liable for the pollution if it is the farm's operator. Schatzow said case law from a federal lawsuit, United States vs. Bestfoods, will show that Perdue could not be considered an operator, does not own the chicken manure and is not responsible for pollution on the farm from poultry operations, if such pollution existed.
Schatzow said the Waterkeepers are looking for a test case to force regulators to make integrators responsible for pollution from their contract growers, and they think the Hudson case is the vehicle to do that.
"Not only is Perdue not liable if there was a violation of the CWA, but we don't think there was one," Schatzow said. "The only reason they're bringing this case is because they want to change the law. They have tried to get EPA and MDE to do it, and EPA and MDE have refused, so now they're trying to get a court to do it."
The case began in the fall of 2009, when Assateague Coastkeeper Kathy Phillips, North Carolina Riverkeeper Rick Dove and then-Waterkeeper counsel Scott Edwards were taking a reporter from the Wall Street Journal on a flight over the Eastern Shore to observe piles of chicken manure near Salisbury, MD. While in the air, the group saw several piles of what appeared to be chicken manure on the Hudson farm, off Logtown Road in Berlin. One large pile appeared to have a trench running out to a ditch, which led to Franklin Branch and then to the Pocomoke River.
Phillips took pictures and then tested the water in the ditches. She found high levels of E.coli and fecal coliform, bacteria that indicate animal waste had entered the stream.
The Waterkeeper Alliance and the Assateague Coastal Trust filed a notice of intent to sue with the Maryland Department of the Environment, the Hudsons and Perdue. After a reporter from The Baltimore Sun inquired about the letter, the MDE investigated the matter. Its inspectors attempted to test the pile and the ditches, but the Hudsons would not let them, according to emails from MDE officials that are part of the suit. Worcester County officials were also refused access to test.
Five weeks later, MDE's inspectors did test the pile and concluded it was biosolids from Ocean City, MD's sewage treatment plant. Biosolids are left at the end of the sewage treatment process. They have been treated to remove pathogens and are routinely spread on farm fields as soil amendments. MDE officials said the pollution in the ditches didn't come from the pile. Nevertheless, they fined the Hudsons $4,000 for improper storage of biosolids.
Although many farmers familiar with the area have said they could tell the pile was biosolids early on, the Riverkeepers are not convinced. And they say no matter what was in the pile, Perdue is still responsible, because they say the pollution in the ditches had to come from discharges made in the course of growing chickens.
Lee Richardson, president of the Wicomico County Farm Bureau, has been organizing fund-raisers to help pay for the Hudson's defense. He said farmers across the Shore support the Hudsons, in part because they believe the Hudsons were following the law. Richardson said the pile was biosolids, not chicken manure, and at the time the law did allow the Hudsons to store it there.
"They're not after that farmer; they're after Perdue. This is definitely an attack against modern agriculture," Richardson said. "It could have been any one of us, and it could be any one of us in the future."
Perdue, Delmarva Poultry Industries, and several farm bureaus also support the effort to raise money for the Hudson's defense. So far, the effort with the website Savefarmfamilies.org, has raised $100,000 for the Hudsons.
Lawyers for the Hudsons did not return calls for comment.
The Savefarmfamilies.org web site features a video of Alan and Kristin Hudson and their children on a pastoral farm talking about how the lawsuit has devastated their family. There are links to other videos, including one interviewing a top Riverkeeper official at a ski resort. Robert F. Kennedy Jr. co-founded the Waterkeeper Alliance, which includes the Assateague Coastkeeper and the nation's other riverkeepers and harborkeepers.
The site also features the letter that Gov. Martin O'Malley wrote to Dean Phoebe Haddon of the University of Maryland School of Law criticizing its clinic for taking the Waterkeeper case. O'Malley called the case a "misuse of state resources" that "perpetuates an injustice" because the Hudsons do not have the resources of a law clinic at their disposal to fight back. The letter also suggested that justice "would have been better served" had the clinic defended the Hudsons.
The letter comes after several attempts in the 2010-11 legislative session to take away the law clinic's funding. In the end, the legislature didn't go that far, but the law clinic had to account for all of its spending.
O'Malley's letter came the day before summary judgment briefs were due in the case and outraged both environmentalists and lawyers.
"To say that these students should be representing the polluter? That's absolutely outrageous. He's a lawyer, and here he is, telling these students they should be representing the polluters, not the Bay," said Edwards, who is still representing the Waterkeepers in the case even though he now works for Food and Water Watch. "That's crazy, that a governor would play into the industry's hands by becoming part of the PR."
O'Malley's spokeswoman, Raquel Guillory, said the governor has been consistent in his concerns about the suit.
"The governor had expressed his opinion publicly on the suit a year ago. His opinion on the issue is not new. A year later, he decided to reiterate his opinion in a letter to Dean Haddon," she said.
Stevenson, of the Chesapeake Legal Alliance, said that he wrote to O'Malley to say the governor was "wrong on the facts, wrong on the law, and wrong on policy." He said Perdue may have convinced the governor that the lawsuit could bankrupt a small business, but that Perdue is only trying to protect itself.
"This lawsuit is not about the family farm," he said. "It's all about Perdue."