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Eastern Shore farmers, Perdue win pollution lawsuit

Federal judge rules Waterkeeper group failed to make case

By Timothy B. Wheeler, The Baltimore Sun

9:08 PM EST, December 20, 2012

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Ruling in a bitterly contested case with national ramifications, a federal judge found Thursday that the Waterkeeper Alliance failed to prove that an Eastern Shore farm's chicken houses were polluting a tributary of the Chesapeake Bay.

U.S. District Court Judge William M. Nickerson declared in a 50-page opinion that the New York-based environmental group had not established in a two-week trial in October that waste from chicken houses owned by Berlin farmers Alan and Kristin Hudson was fouling a drainage ditch that ultimately flows to the Pocomoke River.

He also rejected arguments that Perdue, the Salisbury-based poultry company for whom the Hudsons raise birds, should share responsibility for any pollution because of its tight oversight of contract chicken growers.

Alan Hudson, flown by Perdue with his family to a news conference in downtown Baltimore, said he and his wife were relieved by the verdict, which came three years after the environmental group first publicly accused their Worcester County poultry operation of polluting a waterway.

"It's been very trying for us,'' he said with his wife and two young children beside him, "but we're glad it went this way and we can get on with our lives."

Spokespeople for the Waterkeeper Alliance and for the University of Maryland environmental law clinic, which represented the group, said they were disappointed by the judge's ruling and are considering an appeal. They said they believed they had raised important issues about farm pollution and the adequacy of government environmental protection.

The case attracted national attention, as environmental and agricultural industry groups alike saw it as a major test of whether poultry companies like Perdue can be held legally accountable for any pollution from the waste the birds generate.

The companies own the birds and supply all feed but insist they are not responsible for dealing with the waste. Perdue subsidized a public-relations campaign, savefarmfamilies.org, to publicize the Hudsons' case and helped with raising funds to pay their legal bills.

"Perdue and the Hudsons were convenient targets in the Waterkeeper Alliance's national campaign against modern agriculture," Perdue spokeswoman Julie DeYoung said in a statement. "The Assateague Coastal Trust and University of Maryland Environmental Law Clinic were enthusiastic partners in this reckless witch-hunt against Maryland farmers," she added.

The trust is a member of the Waterkeeper group, and the university's clinic drew criticism from farm groups, rural lawmakers and even Gov. Martin O'Malley for their role in the case.

Though the ditches draining the 300-acre farm were contaminated at the time with high levels of bacteria and nutrients typically found in animal waste, Nickerson wrote that the Waterkeeper group had only shown it was "possible" some of the pollution had come from the Hudsons' two chicken houses holding 80,000 birds.

The group argued that waste was blown out of the chicken houses by large ventilation fans and tracked out by equipment and boots, then washed off the farm whenever it rained.

The judge indicated he was convinced the contamination came from the farmers' herd of 42 cows, which evidence showed roamed about the farm and deposited manure near the drainage ditch. Runoff from livestock in such circumstances was not regulated at the time, though the Maryland Department of Agriculture has since adopted rules requiring that farm animals be kept away from water.

Given the ton and a half of waste estimated to be generated daily by the cows, Nickerson faulted the Waterkeeper group and its legal team for not sampling the vent fans and the ground around the chicken houses for traces of manure.

The ruling was welcomed by farm groups that had rallied in support of the Hudsons.

"Today's ruling is a win for Delmarva's family farmers and against radical environmental activists who disregard the facts, sue first and ask questions later," National Chicken Council president Mike Brown said in a statement.

It was also hailed by Perdue, whose lawyers had contended that the lawsuit threatened the modern poultry industry, in which farmers raise chickens under contract to companies like Perdue, Tyson's and Mountaire.

"They want to change the contract relationship," Steve Schwalb, Perdue's vice president of environmental sustainability, said at the press conference.

The Waterkeeper Alliance and some other groups contend that the system unfairly dumps responsibility for dealing with the birds' waste on farmers, and that poultry farm runoff is a major polluter of the Chesapeake and other waterways because of lax government oversight. It had hoped through this case to make companies take legal and financial responsibility for dealing with the millions of pounds of waste chickens generate on the Delmarva Peninsula and in other poultry-growing regions.

The group had argued in its lawsuit that Perdue should be required to share legal responsibility for any pollution from the Hudsons' farm because the company effectively controlled the raising of the flock, inspecting the houses frequently, issuing orders to the growers and at times adjusting the operation.

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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