Sides React To Clean Water Act Lawsuit Verdict

BERLIN — When the dust settled after a U.S. District Court judge ruled late last week in favor of a Berlin farm family and Perdue over alleged pollution violations dating back to 2009, parties on both sides reacted in a variety of ways from joy and relief to disdain and angst.

In March 2010, the New York-based Waterkeeper Alliance, along with the Assateague Coastal Trust (ACT) 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.

After months and 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. Last Thursday morning, Nickerson issued his ruling in the case, siding in favor of the defendants Alan Hudson and Perdue.

“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.”

After the judge’s ruling was rendered, both camps reacted as expected with the defendants expressing relief and elation, and the plaintiffs expressing disappointment and the promise to continue to advocate on behalf of the environment.

“We are thrilled with today’s ruling, which clearly is a resounding victory for Perdue and farm families everywhere,” said Perdue spokesperson Julie DeYoung. “We congratulate the Hudsons on their long-overdue exoneration. We are also pleased that the judge upheld existing law that safeguards the contractor relationship and confirms the independence of thousands of family farms who choose to raise poultry and livestock. This is a good day for Maryland and for agriculture.”

ACT was naturally disappointed with the outcome and vowed to continue to hold farmers and big poultry companies accountable.

“We are disappointed Judge Nickerson did not agree with our argument,” the ACT statement reads. “We continue to believe that the testimony and evidence presented clearly demonstrated that the poultry CAFO (Concentrated Animal Feeding Operation) continuously polluted the waters of the state, and that both Alan Hudson and Perdue should be held accountable.  And although the judge did not find in our favor, it is clear the testimony in this trial illuminated some important facts.”

ACT officials continued to assert big poultry companies, such as Perdue, should be held accountable for the actions of their independent growers.

“This case has always been about stopping water pollution. Assateague Coastal Trust initiated it to address the continuing pollution found coming off the Hudson’s farm in more than a dozen water samples taken over a seven-month period,” the ACT statement reads. “We also initiated it because we think poultry integrators have the duty to share the burden created by manure generated by the flocks they grow. We feel it is unfair to leave individual farmers the nearly impossible job of handling the manure in an environmentally responsible way.”

While stopping short of announcing an appeal in the case, ACT officials promised to continue to fill the watchdog void when local, state and federal agencies fail to act on alleged Clean Water Act violations.

“We all have a right to clean water, and our organization, Assateague Coastal Trust, will continue to defend that right,” the statement reads. “When the state won’t act to protect our waters, when the federal government won’t act, then we local citizens must. We must take the action needed to stop the pollution and protect our families’ safety and the health of our waters.”

Save Farm Families, a group formed to provide financial assistance to the Hudsons in their battle with the Waterkeeper Alliance, said the judge’s decision vindicated small family farmers and exposed the watchdog group’s larger agenda.

“All along we’ve said that this lawsuit threatens family farms across the country, and the trial revealed the true agenda of the groups and of the individuals involved in the case – to use trumped up pollution charges to attack poultry farms,” the Save Farm Families statement reads. “We believe it’s clear that the Waterkeeper Alliance, the Assateague Coastal Trust and the University of Maryland Environmental Law Clinic did not prove their case. They have continuously changed their story to find some reason to vilify a hardworking farm family just because they raise chickens. The best they could come up with is that dust from the poultry house fans and the small amount of litter from foot traffic in and out of the poultry house constitute a violation of the Clean Water Act.”

According to DeYoung, the Waterkeeper Alliance put an innocent family through hell and tried to drive a wedge between farmers and responsible environmentalists. Evidence presented during the trial showed that the Waterkeeper Alliance and the Assateague Coastal Trust were determined to file a lawsuit against a poultry farm affiliated with a major chicken producer and went looking for a victim in flights over the Eastern Shore, DeYoung maintained.

“As Judge Nickerson pointed out in his Summary Judgment letter, they went looking for someone to sue, and when they found a large pile on the Hudson Farm that they thought was chicken manure, they thought they had  their ‘bad apple’,” said DeYoung. “The pile turned out to be legal biosolids from nearby Ocean City, but the Waterkeepers persisted with their lawsuit anyway, changing their arguments throughout the case. Perdue and the Hudsons were convenient targets in the Waterkeeper Alliance’s national campaign against modern agriculture. The Assateague Coastal Trust and University of Maryland Environmental Law Clinic were enthusiastic partners in this reckless witch-hunt against Maryland farmers.”