Alliance Decides Against Appealing Hudson Case Ruling
BERLIN -- The deadline to appeal the decision in a landmark civil suit filed against a Berlin farm family and Perdue passed quietly this week with no further action taken.
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 last 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.
The Waterkeeper Alliance’s deadline to file an appeal of Nickerson’s decision was set for Jan. 22, a deadline that passed on Tuesday with no further action taken by the plaintiffs in the case. In a prepared statement, the Waterkeeper Alliance said the burden of proof on appeal was too great to consider taking further action.
“Although Judge Nickerson acknowledged that there could be discharges from the poultry operation, he concluded that we did not meet the burden of proof on that issue,” the statement reads. “Given the high burden appellate courts impose for reversing a district court's findings of fact, Waterkeeper Alliance will not appeal Judge Nickerson's decision.”
While the Waterkeeper Alliance did not appeal, the organization took some solace in highlighting some of the alleged deficiencies in the state’s regulatory programs.
“Although Waterkeeper Alliance is disappointed with the ultimate conclusion of the case, we believe that many of the issues brought to light during the trial, such as the deficiencies in Maryland's CAFO permitting and enforcement programs, will lead to progress in protecting and restoring the Bay,” the statement reads.
The Assateague Coastal Trust and the Coastkeeper also issued a statement regarding the decision not to pursue an appeal in the case.
“While this case has always been about pollution to the Pocomoke River and Assateague Coastal Trust was very disappointed by the Judge's finding, the decision to appeal or not was solely that of Waterkeeper Alliance,” the ACT statement reads. “While ACT will use the evidence from this trial to join others in taking a hard look at the state's failed Nutrient Management Program and MDE's lack of enforcement of the Clean Water Act through their CAFO permitting, we will also continue our efforts to bring co-permitting and integrator liability to the poultry industry on Delmarva and will continue to monitor county policies related to growth and water resource management.”
While no appeal is forthcoming, the issue of reimbursement for legal fees and other costs for the defendants remains at issue. In early January, Perdue and the Hudsons each filed motions seeking a combined $3 million-plus from the plaintiffs for attorney fees and other costs. This week, the Waterkeeper filed a motion in opposition to the defendants’ bill of costs. The defendants are seeking nearly $90,000 in costs associated with litigating the case including costs for videotaped depositions of witnesses, most of which were never presented at trial; other witness costs including hotel stays and other expenses; and most notably, the cost of exhibits and presentations that accounted for over $75,000 of the $89,000 listed in the bill of costs.
“Perdue voluntarily chose to incur over $75,000 in costs associated to present its evidence at trial, despite the fact the plaintiff displayed many of the same exhibits in virtually the same manner using an iPad app that cost $89.99,” the motion reads. “Thus, the plaintiff is not responsible for the cost of Perdue’s extravagance.”
Meanwhile, aside from the bill of costs, the defendants are also seeking roughly $3 million in attorney fees. In a filed this week, counsel for the Waterkeeper Alliance urged the judge to bifurcate, or separate, the issues of whether or not the legal fees should be reimbursed from the amount of the legal fees.
“The plaintiff hereby requests that the court bifurcate the proceedings concerning the motions for attorneys’ fees and first consider the issue of whether the defendants are entitled to fees in this case before reaching the question of the amount of the fees,” the letter reads.
The letter also points out the legal fees incurred by the Hudsons were largely paid by a support group called Save Family Farms, which should at least limit the urgency from a long delay on the reimbursement issue.
“Furthermore, Mr. Hudson and his attorney have repeatedly stated that most, if not all, of Mr. Hudson’s attorney fees have already been paid by Save Farm Families, thus he will suffer no prejudice from a possible delay,” the letter reads.