Perdue, farmer win pollution lawsuit
Posted: 11:47 am Thu, December 20, 2012
Daily Record Legal Affairs Writer
Berlin farmer Alan Hudson said he got “one the best Christmas presents” when a federal judge held Thursday that he and Perdue Farms Inc. did not violate the Clean Water Act.
Senior U.S. District Judge William N. Nickerson found in favor of Perdue and its chicken-raising contractor Hudson Farm in the closely watched lawsuit alleging the pollution of a Chesapeake Bay tributary.
By targeting both Perdue and, Hudson Farm, the lawsuit was seen as a broader challenge to the way industry operates.
But Nickerson’s 50-page opinion said that plaintiff Waterkeeper Alliance Inc., a New York-based organization run by Robert F. Kennedy Jr., failed to show that Perdue and Hudson Farm’s poultry operation polluted the Pocomoke River and Chesapeake Bay.
Nickerson also found that Salisbury-based Perdue could not be liable.
That specific finding was “significant,” said Michael Schatzow, a Perdue attorney at Venable LLP in Baltimore,
“This ought to send a strong message to the plaintiff that it is not going to get what it wants by bringing court cases,” Schatzow said. “There isn’t anything in this decision that would give this out-of-state plaintiff any relief.”
Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and also represented Waterkeeper Alliance, said in an emailed statement Thursday that Waterkeeper is “obviously disappointed in Judge Nickerson’s ruling and will be carefully reviewing the opinion and supporting documents to determine if there are any appealable issues.”
Schatzow has said the plaintiffs had a weak case and a broader agenda. He said they wanted to win the weakest possible case, because if they won that case, they could go after other farmers.
|Perdue, farmers respond to legal victory|
Waterkeeper Alliance alleged that Hudson and Perdue repeatedly discharged pollutants through a point source into the Pocomoke River and the Chesapeake Bay. Such discharge, it said, violates the Clean Water Act.
The Alliance had argued that Perdue should be held liable for the pollution because Perdue is “intimately involved in and controls each stage of the poultry-growing process at its contract growers, including Hudson Farm.”
However, attorneys for Perdue and Hudson Farm argued that the cows on the Hudson’s farm were the source of the E. coli bacteria Waterkeeper found, and the judge agreed.
Nickerson noted that “unconfined cattle produce literally tons of manure that is left in the fields, some of which is in direct contact with runoff.”
“They are not confined,” he said. “They roam the Hudson farm freely and produce … tons of manure.”
However, under the Clean Water Act, Waterkeeper Alliance could assert “no liability in this action arising out of the cattle operation,” Nickerson wrote. In contrast, the judge said there was “no evidence of any observable discharge from chicken litter into any ditch on the Hudson Farm.”
Joe Forsthoffer, a spokesman for Perdue, said Thursday at a news conference that the Clean Water Act is “a good thing and has it purpose.”
“But this was not a responsible use of the Act,” he said. “Citizens using the Act have a responsibility to be both responsible and effective, and Waterkeeper was neither.”
The law clinic’s involvement in the action resulted in a heated exchange between Gov. Martin O’Malley and the school’s dean.
In a letter written last November to Dean Phoebe A. Haddon, O’Malley criticized the “costly” litigation that he said was an “ongoing injustice” to the Hudsons.
He noted in his letter that state regulators had looked into the allegations and “found no strong evidence” connecting bacterial pollution in the Pocomoke River to the farm.
“I am not advocating that the government should dictate the clients clinics may represent or the cases they should undertake,” O’Malley wrote. “But it is my strong belief that this case, at this juncture, is a misuse of state resources.”
In response, Haddon told O’Malley that he should not interfere and should let the litigation proceed.
George F. Ritchie, the Hudsons’ attorney at Gordon Feinblatt LLC, said Thursday that the decision shows that “the law and facts matter, not PR campaigns.”
At the news conference, Alan Hudson said the verdict has been a long time coming.
“We are pleased that we can get on with our lives,” he said.
Hudson thanked the people who came together to provide financial support during the lengthy legal process. Ritchie said the Hudsons’ attorneys’ fees are being paid largely via donations from their community.
Hudson said the case has been especially hard on his 6-year-old son and 8-year-old daughter.
“We tried to shield it from them, but they are smarter than they should be,” he said.