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Perdue seeks up to $2.5M in attorney fees in poultry pollution case

Perdue Farms Inc. is seeking up to $2.5 million in attorneys’ fees after the company and one of its Eastern Shore contract farmers defeated a federal Clean Water Act case last month.

Perdue said in filings in U.S. District Court in Baltimore last week that plaintiff Waterkeeper Alliance Inc.’s claims that it and farmer Alan Hudson repeatedly discharged pollutants through a point source into the Pocomoke River and the Chesapeake Bay were “groundless from the start.”

The alliance persisted with the litigation even after discovering that an uncovered pile of what was alleged to be chicken litter turned out to be “harmless biosolids,” attorneys for Perdue said.

Michael Schatzow, a Perdue attorney at Venable LLP in Baltimore, said in an interview Wednesday that the $2.5 million represents attorneys’ fees and expenses that the Salisbury-based company has incurred since March 1, when Senior U.S. District Judge William N. Nickerson issued an order denying Perdue’s motion for summary judgment.

Schatzow explained that the Clean Water Act allows for the prevailing party to seek compensation, and said this case has been “very expensive” for Perdue.

Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and also represented Waterkeeper Alliance, said in an email that the motions are not unusual or unexpected.

“We will file a response in accordance with the court’s scheduling order,” she said.

Farmer Alan Hudson is also seeking upwards of $500,000 in fees and costs. His attorney, George F. Ritchie of Gordon Feinblatt LLC in Baltimore, did not respond to a request for comment. Ritchie, however, has stated in the past that his clients have been living a nearly “three-year nightmare” since the lawsuit was filed on March 1, 2010.

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. In response, Haddon told O’Malley that he should not interfere and should let the litigation proceed.

At a news conference in December, Hudson thanked the people who came forward to provide financial support during the lengthy legal process. Ritchie said the Hudsons’ attorneys’ fees are being paid largely via donations from their community.

Nickerson found in favor of Perdue and Hudson Farm on Dec. 20 in the closely watched lawsuit.

By targeting both Perdue and Hudson Farm, the lawsuit was seen as a broader challenge to the way industry operates.

Waterkeeper 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,” but Nickerson disagreed.

Attorneys for Perdue and Hudson Farm had argued that the cows on Hudson’s farm were the source of the E. coli bacteria Waterkeeper found, and the judge agreed.

He 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.”