Eastern Shore farmers, Perdue win pollution lawsuit

The judge said that although Perdue closely monitored and even regulated growers like the Hudsons, that wasn't enough to hold the company liable for any pollution because its oversight was directed primarily at ensuring the birds' health and growth.

Nickerson did note that Perdue had entered into a voluntary agreement with the Environmental Protection Agency to train many of its growers on how to prevent or minimize pollution — a program suspended after the lawsuit was filed — but the judge said the company should be "commended, not condemned" for the effort.

Schwalb said the ruling vindicates the company's contention that neither the Hudsons farm nor any "normal" poultry operation causes water pollution. He also said the company was weighing whether to resume its environmental compliance training, but wanted to be sure that it would not be used against the company in any more litigation.

The Perdue executive called on the Waterkeeper Alliance to accept the judge's verdict and forget about appealing it.

"It's a time for healing," Schwalb said, adding that the lawsuit had generated "a lot of distrust" between farming interests and environmentalists over the last three years.

"Going forward, we're hoping that the environmental community and agricultural community can work together and solve whatever issues are out there, perceived or real," said Patricia Langenfelder, president of the Maryland Farm Bureau, who added that "litigation is not the first step."

Lee Richardson, who raises chickens for Perdue on his Wicomico County farm, said a campaign he had helped lead to raise funds for the Hudsons' legal expenses had raised close to $500,000, which he said should be enough to pay the bills to date.

"We feel it's been settled, and it's time to end this," said Richardson, who also flew to the Baltimore press conference on Perdue's corporate jet.

But in addition to a possible appeal by the Waterkeeper group, George Ritchie, the Hudsons' lawyer, said he was he was weighing asking the judge to make the environmental group pay the defendants' legal bills — a rare sanction imposed when a court finds a lawsuit frivolous or irresponsible. The judge had warned in an earlier ruling that he could take that step, but made no mention of it in his verdict.

Schwalb said Perdue executives intend to "reach out" to the Assateague Coastal Trust, which initially leveled the pollution allegations, in the hope that its leaders are "willing to rejoin the ranks of responsible environmental groups."

Nickerson criticized Kathy Phillips, the Assateague Coastkeeper who helped investigate the Hudsons' farm and bring the lawsuit, even though she and her group were stricken from the case on a legal technicality.

Writing that it appeared to him that the Waterkeeper group was trying to use the litigation to force poultry companies to alter or abandon their operations on the Eastern Shore, the judge said he "observed in her testimony and her conduct a certain 'ends justifies the means' approach, where truth can be 'spun' to achieve a desired goal."

When Phillips and the Waterkeeper group announced they'd found evidence of pollution at the Hudsons' farm, they released aerial photos of a pile of brownish material they said was poultry manure, with rivulets of water running from it into the ditch.

The pile was later identified as treated Ocean City sewage sludge. The Maryland Department of the Environment cited the Hudsons for placing it too close to the ditch and ordered it moved and covered, but concluded it was unable to identify the source or sources of pollution in the ditch.

The Assateague Coastal Trust, for which Phillips works, issued a statement defending its action, saying it brought the case only after finding high levels of pollution in a dozen water samples taken in the ditches leading from the farm.

Even though it did not succeed, the case still highlighted the way companies like Perdue control their growers and how the state does not exercise adequate oversight of farms to prevent pollution, the group said. Testimony at the trial indicated, for instance, that the Hudsons did not always report or keep records of what they did with their poultry manure, as required by state regulations.

Jane Barrett, the clinic's director, who presented the case at trial, emailed that she shared her clients' disappointment with the verdict and said she'd be reviewing the judge's opinion and other aspects of the case for possible appeal.

The Waterkeeper group and its supporters expressed no regrets about bringing the case, and said they would keep pushing to get poultry companies to take more responsibility for their growers' environmental impacts, and for government to exercise stricter oversight.

"This is a setback. The fight will continue," said Scott Edwards, the Waterkeepers' legal director at the time of the lawsuit, who has since moved to another environmental group, Food & Water Watch.

Maryland Agriculture Secretary Earl F. "Buddy" Hance, who attended parts of the trial to show his support for the Hudsons and Perdue, issued a statement saying: "Judge Nickerson's ruling today goes a long way toward ensuring that both our agricultural heritage and our effort to restore the Bay can move forward cooperatively and in harmony, rather than through damaging litigation."

He defended the state's oversight as better than many other states'.

Tim.wheeler@baltsun.com

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