Source: Capital (Annapolis, MD), September 30, 2012
Posted on: http://envfpn.advisen.com
With the court date fast approaching in the federal lawsuit involving the Waterkeeper Alliance, Perdue Farms and Hudson Farm, direct participants in the case aren’t talking publicly.
George Ritchie, the Baltimore-based attorney for Kristin and Alan Hudson, declined to talk on the record. He also declined to make the Hudsons available for interviews or photos.
Perdue Farms commented through corporate spokeswoman Julie DeYoung, who spoke broadly about the case and its implications.
Assateague Coastal Trust Coastkeeper Kathy Phillips remains a key witness in the case even though she was dismissed as a plaintiff. She declined to comment, instead entrusting ACT board President Tom Jones to speak on the organization’s behalf.
Jane F. Barrett, director of the University of Maryland’s environmental law clinic, which represents the Waterkeeper Alliance, also was not available for interviews.
University spokesman Jeffrey Raymond said the law school couldn’t comment on pending litigation.
Officials at the Maryland Department of the Environment, whose investigation figures in the case, also declined to comment.
The lawsuit over alleged water pollution at an Eastern Shore farm has been waged not only on the legal front but also on the publicity front.
Both sides have enlisted public relations professionals to shape their message to the press and the public. The case has been written about extensively in Eastern Shore newspapers and in farming trade publications and blogs.
The New York City-based Waterkeeper Alliance, which has its own in-house PR team, is using the services of FitzGibbon Media, whose other clients include Change.org, the Daily Kos and the Communications Workers of America.
Kathy Phillips and the Assateague Coastal Trust are using the Hatcher Group, a communications and lobbying firm with offices in Bethesda, Baltimore and Annapolis.
The Hatcher Group has worked with scores of Maryland nonprofit groups, including many involved in the environment, education and health care.
Tom Jones, board president for ACT, said his group already has raised and spent $5,000 on the Hatcher Group, with an expectation that it will need to spend at least $5,000 more.
Perdue Farms has loaned its outside PR agency, Washington-based Levick, to Alan and Kristin Hudson, owners of the farm at the center of the lawsuit.
Levick created a “Save Farm Families” website that has been the nexus of fundraising and communications efforts on the Hudsons’ behalf.
Levick cites the Save Farm Families campaign as a case study on its website, saying it has had “a chilling impact on similar lawsuits elsewhere.”
Perdue spokeswoman Julie DeYoung wouldn’t put a dollar amount on how much the company is helping the Hudsons through donating to their legal defense fund and through “in-kind communications support.”
DeYoung said it was important for Perdue to “help the Hudsons stay in the fight” and not be pressured to settle for financial reasons.
Way down Route 50, past the Eastern Shore’s endless stretches of cornfields and produce stands, Alan and Kristin Hudson’s farm sits off a side road near Berlin.
A faded green sign announces the property as Romarlen Farms. There are produce fields, a grazing area for cattle, and two long, low barns housing tens of thousands of Cornish hens.
The Hudsons’ farm is indistinguishable from thousands of others on the Delmarva Peninsula.
But the Hudsons are at the center of a potentially historic federal court case that alleges they’re polluting a ditch the feeds a river flowing into the Chesapeake Bay.
The trial is scheduled to start Oct. 9.
Environmentalists and farmers who have fought this case for three years agree on only one thing: The outcome could forever change the way chickens are raised, not only on the Eastern Shore, but across the country.
“It’s going to be one of those cases that is written in history as a landmark case,” said Tom Jones, president of the board of directors of the Assateague Coastal Trust, the nonprofit group that set the lawsuit in motion in 2009.
Bill Satterfield, director of the trade group Delmarva Poultry Industry, said, “If this case is successful here, it could set a precedent for producing food in the rest of the country — a dangerous precedent.”
The lawsuit, initiated by Assateague Coastal Trust Coastkeeper Kathy Phillips and the Waterkeeper Alliance, alleges the Hudson Farm is discharging nitrogen, phosphorus and bacteria in violation of the federal Clean Water Act.
It claims that not only should the Hudsons be held responsible — but that Perdue Farms, the company the Hudsons raise birds for, is just as responsible.
Big poultry companies have been insulated from liability for pollution from manure on their contract farms. If the judge rules that Perdue is responsible, it could force changes in how chickens are raised in America.
“It could dramatically change common, accepted farming practices,” Satterfield said.
A suspicious pile
The case dates to late 2009, when Phillips, the Assateague Coastkeeper, flew over the Lower Eastern Shore looking for environmental problems.
On the Hudson Farm, she noticed a big pile of what she believed was poultry manure. According to court records, tests on water samples from ditches surrounding the farm showed off-the-charts readings for nitrogen, phosphorus, fecal coliform, E. coli, arsenic and ammonia.
Phillips and the Waterkeeper Alliance — a confederation of coastkeepers and riverkeepers — filed a notice of intent to sue the Hudsons and Perdue under the Clean Water Act on Dec. 17, 2009.
The Maryland Department of the Environment inspected the Hudson Farm the next day and found a problem with the environmentalists’ claims: The giant pile was not poultry manure but sewage sludge from the Town of Ocean City’s sewage plant, intended to fertilize the Hudsons’ crops the next spring.
Still, the state’s inspectors found that the sludge pile wasn’t properly stored. They ordered the Hudsons to move it away from drainage ditches and levied a $4,000 fine.
The Hudsons complied and the fine was later erased on appeal.
“We assumed, ‘OK, it’s done,'” said Julie DeYoung, a corporate spokeswoman for Perdue.
It wasn’t done.
Unsatisfied with the state’s investigation, Phillips and the Waterkeeper Alliance followed through on their notice and filed a lawsuit on March 1, 2010.
They said the water pollution could have come from no place other than the Hudson Farm. And they argue that Perdue’s extreme control of the chicken-growing process makes it just as liable.
“Because Perdue at all times owns its birds being raised in the Chesapeake Bay area, formulates and owns the feed being fed to its birds, and supervises, dominates and controls the actions and activities of its growers, including Hudson Farm, Perdue is responsible for the safe handling and disposal of the poultry waste generated in the course of the poultry growing operations associated with their respective birds,” lawyers wrote in the initial filing.
Lawyers for Perdue and the Hudsons say the environmentalists’ arguments are flimsy.
In a court filing, Perdue’s lawyers said if the environmentalists are to be believed, “anyone could test the water at Baltimore’s Inner Harbor, find pollution, and with no other basis in fact, file a lawsuit against any farm in the Greenspring Valley, simply because it is upstream.”
Lawyers for Perdue and the Hudsons argue that any manure-related pollution in ditches could come from the dozens of cows the Hudsons raise, and so would not come under the purview of the Clean Water Act.
The environmentalists aren’t daunted by the fact that the big pile that drew their attention to the Hudson Farm wasn’t related to chickens.
They’ve described possible sources of pollution, including exhaust fans on the chicken houses, concrete pads at the doors of the houses, workers’ boots and the tires of farm equipment used to clean and redistribute litter within the houses.
No settlement
Both sides have amassed a court record stretching into the thousands of pages. They’ve sparred over expert testimony and whether each side is sharing documents in good faith.
They’ve sniped over deadlines and schedules.
They’ve tried — and failed — to settle.
U.S. District Court Judge William M. Nickerson has declined to end the case. Nickerson did, however, dismiss Phillips from the case, on the grounds the original notice of intent to sue lacked her contact information.
Nickerson has chided the environmentalists for continuing with a weak case. He said it’s clear the waterkeepers were looking for a test case to challenge the status quo in the chicken industry.
“Plaintiff’s case has now gone from a large pile of uncovered chicken manure to small amounts of airborne litter from the exhaust fans, trace amounts brought out on shoes and tires, and a dustpan of litter left on the heavy use pads,” Nickerson wrote.
Nickerson warned that if he rules in favor of Perdue and the Hudsons, he could require that the plaintiffs pay the attorneys’ fees.
‘A lot to lose’
The judge’s warning should give the environmentalists pause, said Patrick A. Parenteau, a professor and environmental law expert at the Vermont Law School.
Perdue and the Hudsons likely have spent more than $1 million on lawyers, an amount that would be crippling to pay, even for a high- profile environmental group such as the Waterkeeper Alliance, Parenteau said.
If he were in their shoes, “I start rethinking how good my case is,” Parenteau said.
The high stakes create an ideal situation for a settlement.
“Perdue has a lot to lose. The plaintiffs and their counsel have a lot to lose,” Parenteau said.
Perdue and the Hudsons likely would have to concede there is pollution running off the farm. The Waterkeeper Alliance might have to give up its claim that Perdue is responsible for any pollution, Parenteau said.
The settlement talks have been conducted confidentially. But Alan Hudson, in a 2011 magazine interview, let slip that the Waterkeepers were seeking $2 million in fines and a requirement that an outside monitor be brought in for the farm, according to court documents.
Parenteau said it’s a “fascinating gamble” that neither side apparently is ceding any ground. He wonders if it’s too late for anyone to budge.
High stakes
For Perdue and chicken farmers, the stakes are clear: Their business model could be upended.
Perdue and other poultry companies provide chicks, feed, advice and instructions to contract farmers.
The farmers care for the birds until they reach a certain age, then the poultry company — called an “integrator” — picks up the birds and takes them off for slaughter, processing and sale. The poultry litter is left behind.
Perdue argues that its contract growers end up with a valuable commodity — they can use the litter as fertilizer or sell it to other farmers. Perdue offers to take the poultry litter off the growers’ hands for free; it’s turned into fertilizer and sold.
“We look forward to the Hudsons being exonerated and the independence of family farmers being maintained,” said Perdue spokeswoman DeYoung.
According to their supporters, the Hudsons, who have two children, have amassed six-figure legal bills and endured stress- related health complications. (The Hudsons’ attorney said the couple would not conduct any interviews close to the trial.)
Eastern Shore farmers have rallied to the Hudsons’ cause, hosting tractor pulls, silent auctions and, appropriately, chicken dinners.
For the Waterkeeper Alliance, the group’s strategy for reforming large-scale agriculture is at stake.
Losing could affect the alliance’s efforts to promote more sustainable animal farming practices. It also could damage the organization in the eyes of the public.
And — as Parenteau of the Vermont Law School pointed out — the waterkeepers could face hefty legal bills if they lose.
There’s a lot at stake as well for the lead attorneys for the Waterkeeper Alliance.
The organization is represented by students and professors at the University of Maryland’s Carey School of Law in Baltimore.
The law school’s involvement has drawn criticism from politicians because a university that is partially funded by the taxpayers is suing a major Maryland company and a family farm. State lawmakers have threatened to reduce funding to the law clinic.
Gov. Martin O’Malley wrote to the law school’s dean that he was concerned about the clinic’s “continued pursuit of costly litigation of questionable merit.”
O’Malley, an alumnus of the law school, said the lawsuit represented a misuse of state resources.
Jane F. Barrett, director of the clinic, was not available for interviews.
Trial nears
The effects of the lawsuit have been felt around the Eastern Shore, where farming is a dominant industry and where the Perdue name adorns the minor-league baseball stadium and Salisbury University’s business school.
Jones, from the Assateague Coastal Trust, said he had been friends with Perdue boss Jim Perdue, a former biologist. That was before the lawsuit.
“It just kills me to be a part of a lawsuit against Perdue,” Jones said. “The Assateague Coastal Trust doesn’t want to kill the family farm. We just want to enforce the Clean Water Act.”
Satterfield, director of the Delmarva Poultry Industry, said the Hudson lawsuit is the area’s conversation topic No. 1.
“People understand the threat to the way of life around here,” he said.
After dragging on for three years, the lawsuit could be decided in a matter of weeks.