Waterkeeper, Perdue dispute standard for fees under the Clean Water Act

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The Clean Water Act lawsuit against Perdue Farms Inc. and Berlin-based farmer Alan Hudson is over, but the battle over attorneys’ fees goes on.

Attorneys for Waterkeeper Alliance Inc. have submitted their opposition to Perdue and Hudson’s February request for $3 million in fees, and attorneys for Perdue and Hudson have responded to the opposition and requested a hearing on the matter in U.S. District Court in Baltimore.

Perdue and Hudson claimed the high award was necessary because the allegations that they had fouled the Pocomoke River and the Chesapeake Bay were groundless, and that actions like the Waterkeeper’s should be discouraged.

Waterkeeper argued in filings submitted in March to Senior Judge William Nickerson that its case, although ultimately unsuccessful, “was grounded in admissible evidence and expert testimony, and was not frivolous, unreasonable, or groundless.”

“Contrary to [Perdue and Hudson’s] claims, [Waterkeeper Alliance] initiated this litigation based on accurate findings of high levels of pollutants leaving the Hudson property, and sought relief to stop the runoff of those pollutants,” wrote attorneys for the New York City-based environmental advocacy group led by Robert F. Kennedy Jr.

They noted that, even though Nickerson decided in December that Perdue and Hudson could not be held liable, its case was supported by “credible expert testimony and fact evidence,” and had survived motions to dismiss, motions for summary judgment, and motions for judgment.

“Moreover, awarding fees to [Perdue and Hudson] would be inconsistent with the purposes of the Clean Water Act,” Waterkeeper’s attorneys said. “Because [Waterkeeper] was acting to enforce the CWA and to protect the public’s rights to clean water, it was not acting with an improper purpose.”

In the memorandum accompanying his decision last December, Nickerson wrote that there was evidence the pollution came primarily from the unconfined cattle on the Hudson’s property, rather than from its confined chicken operations.

Pollution from cattle, however, was not covered by the Waterkeeper’s lawsuit, and Waterkeeper never attempted to segregate the source of the contaminants.

Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and represented Waterkeeper, was not available Wednesday for comment.

In response to Waterkeeper’s filing, Perdue and Hudson’s attorneys submitted separate filings last week. Perdue’s attorneys argued that the fee provision in the Clean Water Act says nothing about frivolity, lack of merit or good faith.

“Instead, it entrusts the decision about whether to award attorneys’ fees to the discretion of the person in the best position to make the determination — the trial judge — who is empowered to award litigation expenses ‘whenever [he or she] determines such an award is appropriate.”

Perdue’s attorneys reiterated that without an award in this case, Waterkeeper “suffers nothing from the failure to prove its case and can simply move right along and bring the same baseless suit against the next farm — which is what [Waterkeeper’s] post-trial statement suggest it precisely intends to do.”

The Salisbury-based company said Waterkeeper Alliance “contrived concealed and ignored facts in pursuing a baseless case,” and that it was warned by the court that “continuing to litigate a meritless suit that was brought for improper reasons might result in an award of attorneys’ fees.”

But it “persisted in taking a groundless claim to trial, costing [Perdue and Hudson] and the court yet more time and money,” Perdue’s attorneys said in their filing.

Michael Schatzow, an attorney at Venable LLP in Baltimore who represents Perdue, declined to comment on the fee dispute Wednesday except to say that Nickerson has not decided whether oral arguments will be held.

George F. Ritchie, an attorney at Gordon Feinblatt LLC in Baltimore, represented Hudson. Ritchie said in his filing that the policy goal behind the Clean Water Act’s fee provision is to “blunt the financial risk ordinary citizens face in bringing complex, expensive actions.”

“Mr. Hudson is not the type of well-funded defendant Congress had in mind when enacting the CWA, nor is [Waterkeeper] the typical cash-strapped citizens group,” he said. “Plaintiff had airplanes and New York PR firms at its disposal, even before the case began. … If ever there was a case to ‘turn the tables’ on the award of fees under the CWA, this case is it.”

State legislators agreed last month to pay up to $300,000 of Hudson’s legal fees under an amended version of Gov. Martin O’Malley’s budget proposal.

In a letter written in November 2011 to Dean Phoebe A. Haddon, O’Malley criticized the law clinic’s participation in “costly” litigation that he said was an “ongoing injustice” to the farmer and his family.

The governor 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 client’s clinics may represent or the cases they should undertake,” O’Malley wrote. “But it is my strong belief that this case … is a misuse of state resources.”