STEVE LASH ¦ The Daily Record Newswire
(Oct. 12, 2012) Two Maryland agencies “didn’t do much of an investigation” for pollutants on the Pocomoke River, leaving it to an environmental group to bring a private action to enforce the Clean Water Act, the plaintiff’s attorney told a federal judge on Tuesday.
However, an attorney for Perdue Farms Inc. emphasized the lack of regulatory action as proof that the Waterkeeper Alliance Inc. and its attorneys at the University of Maryland’s Environmental Law Clinic have “declared war” on responsible, legitimate farming methods.
The comments came during opening statements of a trial in U.S. District Court in Baltimore, where the Waterkeeper Alliance is squaring off against Perdue and Hudson Farm, a family-owned farm that raises chickens for Perdue near Berlin.
Waterkeeper has pursued the action even though state agencies have concluded that Alan and Kristin Hudson’s Berlin farm did not violate the law — and despite Gov. Martin O’Malley pressing the law school to withdraw from the case last year.
A finding of liability against the farm and Perdue will help ensure people who use the waterway for work and recreation can again “enjoy the uniqueness of the Pocomoke River,” Jane F. Barrett, who directs the school’s Environmental Law Clinic, told Senior U.S. District Judge William N. Nickerson in Baltimore.
But Perdue’s attorney countered that Waterkeeper Alliance is pursuing a meritless and vindictive lawsuit against an industry alleged to be a serial polluter.
Waterkeeper “declared war on Maryland’s poultry industry,” and the Hudsons are “just collateral damage in this battle,” said Michael Schatzow, of Venable LLP in Baltimore.
George F. Ritchie, the Hudsons’ attorney, said his clients are not a major corporation but family farmers who have tilled the land for more than 100 years and have been living a nearly “three-year nightmare” since the lawsuit was filed March 1, 2010.
The $300,000 in compensation and $2 million in attorneys’ fees sought by the plaintiff “would eviscerate my clients,” said Ritchie, of Gordon Feinblatt LLC in Baltimore.
Ritchie said the Hudsons’ attorneys’ fees are being paid largely via donations from their community.
In the lawsuit, the alliance alleges chicken waste at the Hudson’s farm seeped into drainage ditches that carry water from the facility to surrounding waterways, including the Franklin Branch. The branch flows into the Pocomoke River, a waterway of the United States and thus protected by the federal law, the lawsuit states.
In November and December 2009, alliance members sampled water running downstream from the farm and found it contained the fecal coliform, E. coli bacteria, nitrogen, phosphorous and ammonia, according to the lawsuit.
Salisbury-based Perdue is named as a defendant because the company supervised and controlled the activities of its contract grower, the Hudson farm, and thus bears responsibility for its alleged environmental violations, the lawsuit stated.
“Waste from the chicken house is the primary reason we’re here today,” Barrett told Nickerson. “We know we have discharges. That’s a given.”
But Schatzow, Perdue’s lawyer, said the Hudson’s also had dairy cows on the farm, making it impossible to conclude that any of the alleged discharges came from the chickens.
“There is just conjecture and speculation,” Schatzow said.
He added that even if the Hudsons did violate the law, Perdue could not be held liable because the farmers were not employees of the company. Rather, the Hudsons were independent contractors over whom the company had no control with regard to their handling of chicken waste, Schatzow said.
Richie, the Hudsons’ lawyer, said the alliance “sued no matter what” and was not dissuaded by the state agencies’ conclusion that there were no violations of the federal Clean Water Act.
“How in the world can the plaintiff come into this court with a straight face?” he added.
The courtroom slugfest, however, was mild compared to the out-of-court controversy last year surrounding the Waterkeeper’s lawsuit, which was filed by the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law.
Last November, O’Malley wrote a letter to the law school’s dean, Phoebe A. Haddon, in which he assailed the “costly” litigation as an “ongoing injustice” against the Hudsons. O’Malley wrote that state regulators fully investigated the litigation’s allegation and “found no strong evidence” linking 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. … 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.”
In response, Haddon urged O’Malley to back off and let the litigation run its course.
The dean told the governor she was “uneasy” that he would state his opinion on the merits while the case is in litigation.
“Such statements have the potential to become highly prejudicial, undermining the integrity of the judicial process and the independence of the lawyers’ relationship with their clients,” she wrote last November. “I urge you to let the judicial process resolve this matter.”