Judge Rules For Family In Clean Water Act Lawsuit

BERLIN — After three years of tense legal wrangling, a U.S. District Court judge on Thursday issued a ruling in the landmark civil suit filed against a Berlin farm family and Perdue over alleged pollution violations dating back to 2009, siding with the defendants Alan Hudson and Perdue over an independent environmental watchdog group.

In March 2010, the New York-based Waterkeeper Alliance, along with the Assateague Coastal Trust and the Assateague Coastkeeper, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract factory farm operation of about 80,000 birds. The suit was filed after sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. coli in concentrations that exceeded state limits.

After months of legal posturing, the case went to trial in October and concluded after 10 days of testimony by both sides. Closing arguments were heard in early December and U.S. District Court Judge William Nickerson reserved final judgment to review the facts. On Thursday morning, Nickerson issued his ruling in the case, siding in favor of the defendants Alan Hudson and Perdue and against the Waterkeeper Alliance.

“It is hereby ordered that judgment is entered in favor of defendants Alan Hudson and Perdue Farms Inc. and against plaintiff Waterkeeper Alliance Inc.,” the judge’s ruling reads. “It is also ordered that any and all prior rulings made by this court disposing of any claims against any parties shall be deemed a final judgment and that this action is hereby closed.”

From the beginning, the Waterkeeper complaint focused on aerial photographs of an alleged pile of chicken manure adjacent to a drainage ditch which ultimately discharged into the Franklin Branch, then the Pocomoke River and ultimately the Chesapeake Bay. When that pile of chicken manure was deemed to be sludge obtained from the town of Ocean City by the Hudsons for use as fertilizer on the farm, the plaintiffs in the case altered their attack, focusing on the bacteria from exhaust fans in the chicken houses on the farm, or even foot traffic in and out of the chicken houses that ultimately carried pollutants in the drainage ditches. However, in his opinion, Nickerson ruled the plaintiffs were unsuccessful in establishing a nexus between the fan exhaust or the foot traffic and the alleged Clean Water Act violations.

“The court concludes that the plaintiff has not established the alleged Clean Water Act violation because the plaintiff has failed to establish that there was a discharge from the poultry operation,” the judge’s opinion reads. “On the issue of whether there was such a discharge, the plaintiff had the burden of proof by a preponderance of the evidence.”

The judge ruled the plaintiff’s efforts to connect the dots were not successful in proving a violation.

“The court would agree that it is possible that some particle of chicken litter made its way out of the house, into the swale, through the swale pipe, into Ditch 1, off the Hudson Farm and into the Franklin Branch,” the opinion reads. “It is also possible that, if the plaintiff had done appropriate testing on the Hudson Farm, they could have found evidence of that discharge. For all these reasons, the court concludes that the plaintiff has not established a violation of the Clean Water Act.”

Nickerson said in his opinion the connection between the Hudson Farm and the alleged violations could have been simply proven with more sampling.

“If pollutants were coming off of the Hudson Farm, the plaintiff could have easily conducted sampling to determine if the poultry operation was the source of that pollution,” the judge’s opinion reads.

Nickerson somewhat chastised the plaintiffs for failing to conduct further tests on the basis of the associated costs, pointing out the considerable expenditures by all parties to bring the case to trial.

“The plaintiff’s second argument for not doing the necessary sampling to prove its case is somewhat astonishing,” the judge’s opinion reads. “When asked during closing argument why the testing was not done, counsel responded that Waterkeeper is ‘not made of money’ and that the testing would have been too expensive. Given the significant amount of resources that the plaintiff has expended on this litigation, coupled with the foreseeable resource expenditures imposed on the defendants, as well as the time and effort imposed on the court, it borders on indefensible that the plaintiff would not have conducted the straightforward testing and sampling that could have established a discharge from the poultry operation, if there was such a discharge.”

In the end, Nickerson ruled the burden of proof was not met.

“The court has no disagreement with the plaintiff that the Chesapeake Bay is an important and vital resource, that it is seriously impaired and that runoff from factory farms including poultry operations, may play a significant role in that impairment,” the opinion reads. “When citizen groups take up that mantle, however, they must do so responsibly and effectively. The court finds that in this action, for whatever reason, Waterkeeper did not meet that obligation.”

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