BERLIN — Weeks after filing a motion to recover a combined $3 million in legal fees and other costs associated with successfully defending a landmark civil lawsuit filed against them by an environmental advocacy group over alleged pollution violations, Perdue and Berlin’s Hudson Farm last week filed a scathing memorandum in support of their claim for reimbursement.
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 exceed state limits in violation of the Clean Water Act.
After three years of legal wrangling, the case finally went to trial in October and concluded after 10 days of testimony during which experts on both sides testified on the merits of the case. In late December, U.S. District Court Judge William Nickerson ruled in favor of the defendants Perdue and Alan Hudson, opining the Waterkeeper Alliance was not successful in proving a Clean Water Act violation.
In early January, each of the defendants filed separate motions seeking reimbursement for attorney fees and other costs associated with litigating the three-year case. Perdue is seeking $2.5 million in attorney fees and other costs from the plaintiff, while the Hudson Farm is seeking $500,000.
Following court protocol, the motions seeking reimbursement of court costs is followed soon after by the filing of a memorandum to support the motions. Late last week, Perdue filed its memorandum in support, citing extensive case history and pointing out the Waterkeeper continued to pursue the suit even after it became clear its position was untenable. “Based on their zealous determination to proceed to trial and the court’s characterization of their actions as ‘not responsible’ and that Perdue should be ‘commended, not condemned,’ we are fully justified in in asking the court to grant us reimbursement for the cost of defending ourselves,” said Perdue Farms General Counsel Herb Frerichs.
According to Perdue, the Waterkeeper Alliance had multiple opportunities to withdraw, including when it was discovered the alleged chicken manure pile was found to be legal biosolids, and again when MDE officially cleared the Hudsons and determined the situation had been corrected. The Waterkeeper Alliance had another opportunity to withdraw when the court issued a summary judgment ruling that made it clear the facts presented would not support their claims at trial. At that point, the judge even cautioned the plaintiffs against proceeding with the case and warned legal fees could be awarded to the defendants, according to the Perdue statement.
“The Waterkeeper Alliance chose to ignore the court’s caution and persisted with their groundless ideological case,” said Frerichs. “This abuse of a Clean Water Act citizen suit could have bankrupted a farm family and wasted millions of dollars of state resources as well as those of a Maryland company.”
The Perdue statement points out the plaintiff’s use of the University of Maryland Environmental Law Clinic at taxpayer’s expense, essentially allowing the Waterkeeper Alliance to pursue the case against the Hudsons and potentially future cases without incurring any expense.
“Simply put, awarding litigation fees is the most effective way to discourage the Waterkeeper Alliance from doing more of the same,” said Frerichs. “Undeterred by defeat in this court, they can simply move on and sue the next farm.”