Judge Urges Settlement In Clean Water Act Case

BERLIN — In a ruling with mixed results for the parties involved, a U.S. District Court judge in Baltimore last week again urged both sides in the ongoing legal battle involving a local farm to strike a settlement.

In a statement this week, the Assateague Coastal Trust (ACT) said it, too, was interested in seeing a settlement being reached in the lawsuit pitting the Waterkeeper Alliance against Perdue Farms, Inc. and Alan and Kristin Hudson, owners of the farm at the heart of the Clean Water Act lawsuit.

U.S. District Court Judge William M. Nickerson’s March 1 order denied Perdue’s effort to remove the Waterkeeper’s water quality expert witness in the case and denied motions for summary judgment from both sides. A motion for summary judgment decides the case prior to trial. Nickerson made his intention clear — he wants a settlement negotiated.

In his order, Nickerson said he was aware the sides met in 2011 in an unsuccessful settlement conference. He encouraged another round of efforts.

“Some discovery was still ongoing at the time and the summary judgment motions were yet to be briefed. While this case is currently scheduled for trial to begin on April 16, 2012, the Court would certainly try to accommodate a request of the parties to meet again with a magistrate to attempt to resolve this dispute now that the case is more completely developed and before additional litigation resources are expended,” wrote Nickerson.

In a written statement, ACT President Dr. Tom Jones expressed his organization’s desire to see a resolution prior to court.

“ACT remains interested in seeing both sides pursue this course. However, if they are unable to settle the case we are ready to support Waterkeeper Alliance in their preparations for trial,” Jones said in a statement. "Our lawsuit is about clean water and the need to protect it. Everyone desires clean, healthy water, and any pollution of our water which puts at risk communities and economies that depend on clean waterways needs to be addressed.”

In March 2010, the Waterkeeper Alliance, along with Assateague Coastkeeper Kathy Phillips and ACT, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract Perdue factory farm operation of about 80,000 birds. The suit was filed when sampling in ditches adjacent to the property allegedly revealed high levels of harmful bacteria including fecal coliform and E. Coli in concentrations that exceeded state limits.

The Waterkeeper Alliance filed suit in federal court accusing the Hudson Farm of violating the state’s Clean Water Act. ACT Coastkeeper Kathy Phillips and ACT were later dismissed as plaintiffs in the case. From the outset, the University of Maryland School of Law’s environmental law clinic has assisted the Waterkeeper Alliance in the case, which is now heading toward a trial next month if a settlement is not reached.

Meanwhile, as it meanders through legal channels, it was the law school’s involvement in the case that prompted lower shore Sen. Richard Colburn, who has publicly blasted the Waterkeeper Alliance and ACT from the beginning for bringing suit, to introduce Senate Bill 945, which would require the university to pay an amount not to exceed $500,000 to reimburse Hudson Farm for legal expenses incurred in its defense of the case because the university’s law clinic is allegedly representing the Waterkeeper Alliance at no charge.  

Last week, a coalition of state delegates, many from the Eastern Shore, filed sister legislation in the House also seeking reimbursement to the Hudson Farm in an amount not to exceed $500,000. It needs to be pointed out several successful fundraisers have been held over the last year on the shore raising money for the local farmers’ legal battle.

Among the co-sponsors of the bill is Delegate Mike McDermott, who represents the district where the alleged pollution violations occurred, along with Delegates Charles Otto, Jeannie Haddaway-Riccio and Addie Eckardt. House Bill 1349 includes language nearly identical to the bill introduced by Colburn last month, but having the legislation active in both chambers puts it on a faster track to possible passage.

Although he does not know how he will vote on Colburn’s specific bill involving the law school at this time, Sen. Jim Mathias made it clear he supports the farm community in the ongoing litigation.

“I support the Hudson family. I have given my own personal money to support them. I support the poultry industry. What I don’t support is the continual polarization and sensationalizing as the judicial process moves forward,” Mathias said. “I stand behind the Hudson family and the legacy of that farm. I have been on that farm and I have been to a number of their fundraisers. I will stand with them and I will continue to in the future.”

The House bill has a hearing on March 15 before the Appropriations Committee, while a hearing is planned for the Senate bill on March 21 in the Budget and Taxation and Judicial Proceedings committee.

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