The Waterkeeper Alliance's lawsuit against an Eastern Shore poultry grower and Perdue Farms has ruffled feathers all across the state. But a resolution may soon be near.
The case, Waterkeepers Alliance, Inc. v. Alan and Kristin Hudson Farm et al., was scheduled for trial in Federal District Court in Baltimore on April 16. But the parties are scheduled to have a settlement conference on March 28. If the case doesn't settle, a new trial date will be set.
The settlement push follows a March order in which federal Judge William Nickerson denied all requests for summary judgment, allowing the case to proceed. The judge also denied a motion to prevent the Waterkeepers' experts from testifying at the trial.
But there wasn't a lot of other good news in the order for the Waterkeepers or the University of Maryland's environmental law clinic, which is representing the watchdog group in this case.
"As counsel might detect, there are elements of this litigation that the Court finds disturbing," Nickerson wrote, adding, "it seems clear that the original Plaintiffs in this action were looking for an opportunity to bring a citizen suit under the CWA (Clean Water Act) against some chicken production operation under contract with a major poultry integrator. When (Assateague Coastkeeper Kathy) Phillips discovered a large pile on the Hudson Farm that she believed to be chicken litter, she concluded that she had found her 'bad apple.'"
The Maryland Department of the Environment later inspected the pile and said the pile was biosolids - treated sewage waste from Ocean City.
"After the pile proved to be something other than chicken litter, Phillips continued to represent, apparently without any evidence, that the pile was tainted with chicken manure," Judge Nickerson continued. "Plaintiff's case has now gone from a large pile of uncovered chicken manure to small amounts of airborne litter from the exhaust fans, trace amounts brought out on shoes and tires, and a dustpan of litter left on the heavy use pads."
Although the judge acknowledged the Waterkeepers motives in bringing the action "might not be relevant at this stage of the litigation," they may have relevance when deciding any punishment. He said he would also look at any of the defendants' efforts to comply with existing regulations. And he warned that, "While certainly rare, it is not unprecedented that attorney's fees can be awarded to a prevailing defendant in a CWA citizen suit."
Nickerson also criticized the law clinic's teaching techniques, saying their briefs were too long and too dense with footnotes to be "helpful in the context of litigation."
The lawsuit, filed in early 2010, alleged that Alan and Kristin Hudson violated the Clean Water Act by discharging pollutants into waters of the state - in this case, the Franklin Branch, a stream that leads to the Pocomoke River. After a notice of intent to sue, the Maryland Department of the Environment tested the ditches south of the Hudson's chicken houses and found levels of fecal coliform and E.coli that were more than 100 times the acceptable standard.
The lawsuit also names Perdue Farms as a defendant and alleges that Perdue Farms is responsible, because it hired Alan and Kristin Hudson to grow the birds and controls many aspects of the poultry-growing operation.
Gov. Martin O'Malley has criticized the law clinic for representing the Riverkeepers, suggesting that the clinic should instead be helping the Hudson family.
"This case, at this juncture, perpetrates an injustice," O'Malley wrote in November in a letter to law school dean Phoebe Haddon. "This case, given the facts now discovered, uses the economic weapon of unlimited litigation resources- namely, taxpayer supported State resources - to potentially bankrupt and destroy a family farming operation which has no recourse to similarly unlimited litigation assets."
The Waterkeepers Alliance was founded by Robert Kennedy Jr. in New York, but individual Waterkeeper groups around the country raise their own money. The Assateague Coastal Trust, the group Phillips works for, initially filed the suit.
Maryland Agriculture Secretary Buddy Hance has spoken in support of the Hudson family. Hance has attended several fund-raisers for the Hudsons and contributed to their legal defense, although a department spokesperson said he'd been doing that on his own time and with his own money.
A group called SaveFarmFamilies.org has been raising money for the Hudsons. The group includes several county farm bureaus in Maryland as well as poultry producers, out-of-state farm bureaus, regional banks and the national councils for chicken, egg and grain growers. Perdue has been a big supporter of the group.
Hudson has said his attorneys fees have topped $100,000 so far.
Attorneys for the Waterkeepers declined to comment for this story. Attorneys representing Alan and Kristin Hudson declined to return phone calls.
Perdue attorney Michael Schatzow, who is with Venable, said the judge's opinion, "speaks for itself, but we urge that it be read in its entirety."
Alan Hudson has already won a small victory in the case.
Inspectors with the Maryland Department of the Environment visited the farm after the Waterkeepers filed their notice of intent to sue. They concluded that Hudson had improperly stored biosolids and fined him $4,000. But an administrative law judge overturned that fine, because the MDE does not actually have any regulations governing the proper storage of biosolids.
The Hudsons received recommendations from Ocean City, where the biosolids came from, suggesting they cover the pile and locate it away from dwellings. They didn't do that, the judge acknowledged, but concluded that in doing so, they also broke no laws. Biosolids contain nitrogen and phosphorus that can run into waterways. Between March and August of 2009, the Hudsons received 213 tons of biosolids from Ocean City, according to Alan Hudson's deposition.