BERLIN — With an October court date looming in the ongoing battle between a Berlin farm family and an environmental watchdog group over alleged pollution violations dating back to 2009, the defendants last week filed a motion to have the federal judge and the participating parties tour the farm where the infractions allegedly occurred, but the plaintiffs this week already filed a motion in opposition.
In March 2010, the 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 when sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. Coli in concentrations that exceed state limits. The Waterkeeper Alliance filed the suit in federal court accusing the Hudson Farm of violating the state’s Clean Water Act.
After months of plodding through the judicial process, the potential landmark case is finally on target for trial in October, but a new wrinkle was added last week when attorneys for Perdue and the Hudsons filed a motion seeking a visit to the site by the federal judge presiding over the case and all participating parties.
At the farm, the Court would see for itself the chicken houses, the heavy use pads outside the chicken house doors, the so-called swale between the chicken houses, the manure shed, the elevation and slope of the farm’s terrain, the cow pastures and the farm ditches, according to the motion to view.
“Viewing the Hudson Farm will substantially aid the Court in weighing the evidence relevant to the plaintiff’s theory of liability and the defendants’ defenses,” the motion reads. “These features can only be fully perceived first-hand. The information that a photograph, map or drawing, or any other two-dimensional depiction of a place can convey is necessarily limited.”
According to the motion, it is within the federal court’s purview to opt for a site visit, citing extensive case law to support its cause.
“The courts have sensibly recognized that if a thing cannot be brought to the observer, the observer must go to the thing,” the motion reads.
The defendants’ motion further suggests an in-person visit to the site would provide the judge and the court with evidence not easily ascertained from maps, diagrams and photographs.
“Pictures and diagrams can represent the relative farm features in this case only to a limited degree,” the motion reads. “If the Court were to visit and view the site in person, it could examine the farm comprehensively and in detail. Moreover, a visit to the Hudson Farm can be accomplished without delay, expense or inconvenience to the Court as it is located on 126 miles from downtown Baltimore.”
However, the plaintiff in the case, the New York-based Waterkeeper Alliance, this week filed a motion in opposition to the site visit, arguing there could be little to be learned from a visit to the site three years after the alleged infractions occurred.
“The defendants have failed to offer any compelling justification for requesting that the Court spend an entire day visiting the Hudson Farm, where the voluminous factual record in this case documents the site and its features and the current conditions of the site are within the defendants’ exclusive control,” the motion in opposition reads. “While features on the Hudson Farm are important to this case, the Court can weigh the evidence presented at trial and make the necessary credibility determinations without observing the site firsthand.”
The Waterkeeper Alliance’s motion in opposition to the site visit points out much has likely changed at the farm since 2009 and suggests the new conditions at the site can be carefully controlled by the defendants.
“The conditions on the Hudson Farm may have changed over time,” the motion in opposition reads. “The condition of each of these enumerated features can easily be changed by human actions, natural forces and the passage of time. The condition of the other features, such as the location and number of livestock on the site, the presence or absence of chickens in the poultry houses, the frequency of housekeeping and maintenance activities and the number of enable poultry house ventilation fans can affect the site’s appearance and environment and are wholly within the control of the defendants.”
The motion in opposition also points out the inherent delays associated with a trip to Berlin in what has already been a lengthy process.
“The 129 miles between the Edward A. Garmatz Courthouse and the Hudson Farm translates to a minimum to a minimum five-hour, round-trip car ride assuming no traffic disruptions,” the motion in opposition reads. “When this time is added to time at the site, the Court and counsel would be spending eight to nine hours at minimum on the site visit.”