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Chicken-farm lawsuit in judge’s hands

Beth Moszkowicz//Daily Record Legal Affairs Writer//October 24, 2012

Chicken-farm lawsuit in judge’s hands

By Beth Moszkowicz

//Daily Record Legal Affairs Writer

//October 24, 2012

Both sides in a closely watched lawsuit over alleged pollution of a Chesapeake Bay tributary by a Berlin-based farmer and Perdue Farms Inc. have wrapped up their cases in U.S. District Court in Baltimore — but the verdict will not be in for more than a month.

Senior Judge William N. Nickerson, who is presiding over the bench trial, on Wednesday postponed closing arguments until Nov. 30.

The judge instructed each side to file proposed Findings of Fact and Conclusions of Law by Nov. 14, and to respond to the other side’s filing by Nov. 21.

Attorneys for Perdue and the New York-based Waterkeeper Alliance Inc. agreed that such a move was not uncommon in civil litigation

“It’s simply an indication of the amount of evidence that has been produced in this case,” said Chris Nidel, an attorney with Washington-based Nidel Law PLLC, who represents the Waterkeeper Alliance.

Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and also represents the Waterkeeper Alliance, estimated that there are thousands of pages of documents in the case.

Barrett said after the close of the case that she is “confident that the record will reflect that we have met our burden of proof.”

Michael Schatzow, Perdue’s lawyer, was equally pleased with the way the trial went.

“We think the plaintiffs did not present sufficient evidence for the result that they seek,” said Schatzow, a partner with Venable LLP in Baltimore.

Waterkeeper Alliance has alleged that Hudson Farm and Perdue have repeatedly discharged and continue to discharge pollutants through a point source into the Pocomoke River and the Chesapeake Bay in violation of the Clean Water Act.

But Julie DeYoung, a spokeswoman for Perdue, said this case comes 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, she said the plaintiffs have put “a farm family through hell, drove a wedge between farmers and environmentalists, and wasted taxpayer resources.”

Waterkeeper Alliance alleged that water samples taken from a drainage ditch downstream of Hudson Farm showed high levels of the fecal coliform, E.coli bacteria, nitrogen, phosphorous and ammonia. The plaintiff said 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.”

Farmer Alan Hudson testified last week that he did not have a management plan in place to prevent groundwater contamination for four years, and acknowledged using hundreds of tons of manure and bio-solids on the fields of his 200-acre Worcester County farm.

He admitted to applying 240 tons of poultry waste in 2007 and 210 tons in 2008, and acknowledged not having a nutrient management plan in place from 2004 through 2007. Such plans are required under the Water Quality Improvement Act to prevent groundwater contamination.

Once the nutrient management plan was in place in 2008, Hudson said, he did not keep records as to the application of chicken manure to his fields.

Attorneys for Hudson and for Perdue, which is based in Salisbury, have said that the farm operates like others and that there is no evidence of pollution from the farm’s chicken operations. They have called the lawsuit meritless and vindictive.

Waterkeeper “declared war on Maryland’s poultry industry,” and the Hudsons are simply “collateral damage in this battle,” Schatzow has said.

$2.3 million in damages sought

Charles Hagedorn, a professor of microbiology at Virginia Tech, testified for the defense on Monday that it would have been extremely difficult for pollutants from poultry on the farm to enter a Chesapeake Bay tributary.

“These fecal bacteria rapidly die off because it is such a foreign environment to them,” Hagedorn said.

Hagedorn also testified that any fecal matter detected at the farm was not from chickens but from another source: the 40 cows on the Hudson farm.

Hudson testified last week that the lawsuit has been especially difficult for his 6-year-old son and 8-year-old daughter.

“It’s been extremely hard on me and my wife, but it’s been even harder on my children,” Hudson said.

Waterkeeper Alliance is seeking $300,000 in compensation and $2 million in attorneys’ fees, as well as a remedial injunction ordering the Hudsons and Perdue to pay the costs of any environmental restoration or remediation deemed necessary to comply with the Clean Water Act. They are also seeking the right to monitor operations in the future.


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