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As Long as We Remember...

January 22, 2013

Judge Stands With Farmer in Manure Suit

Farrell Keough

In a Baltimore Sun Letter to The Editor, it was established that “the University of Maryland Carey School of Law Environmental Law Clinic offered pro bono, (without compensation for the public good) legal services for the Waterkeepers Alliance” in 2012.


In other words, our tax dollars went to support a lawsuit against a Maryland citizen brought by an organization that has millions in its bank account.


This lawsuit has been adjudicated and not only did the plaintiffs (Law School and Waterkeeper) lose, but they were admonished by the judge to a level rarely seen in our litigious and environmentally defamatory society. “When citizen groups take up that mantle, however, they must do so responsibly and effectively. The Court finds that in this action, for whatever reason, Waterkeeper did not meet that obligation.” *


One of the main players in this lawsuit was Kathy Phillips, the “Assateague Coastkeeper”, [Waterkeeper is a membership organization and among its members is the Assateague Coastal Trust (ACT)]. As noted by the judge, this woman took an approach anything is justified – whether it was truthful and accurate or not.


It appears to the Court from her testimony, and the overall course of this litigation, that Waterkeeper [Waterkeeper Alliance, Inc.] has a goal of using the CWA [Clean Water Act] to force poultry integrators, like Perdue, to seriously alter if not abandon their operations on the Eastern Shore. While no one could question the passion with which Phillips approaches that goal, the Court observed in her testimony and her conduct a certain "ends justifies the means" approach, where truth can be "spun" to achieve a desired goal.*


The Waterkeepers were doing a fly-over of that area of Maryland and saw a pile of what they believed was chicken manure. They contacted Maryland Department of Environment [MDE] and a site survey was completed. “[Mr.] Mister [Regional Coordinator for the Eastern Shore for the Maryland Department of Environment] and the other MDE staff quickly determined that the large pile on the Hudson Farm was not chicken manure but was Class A bio-solids.”*


MDE initially levied a fine upon the Hudson’s, but that was later dropped due to their consistent compliance with the Maryland environmental rules. But this did not stop the Waterkeepers or the Maryland School of Law!


The Clean Water Act requires that those who are being investigated have an opportunity to know the problem and mitigate it in such a way as possible. Yet, as noted by the judge, “[f]or the next two months, however, Phillips and Waterkeeper did not express their concerns to either state or federal environmental regulatory agencies.” *


In fact, Ms. Phillips pursued this family with such vitriol that the judge called them to task for their misrepresentation – also called a lie.


After the discovery that the pile on the Hudson Farm was bio-solids, and not chicken manure as first alleged, Phillips and Waterkeepers continued to represent to the press and public that the pile contained a mixture of human waste and chicken manure. Remarkably, Phillips on behalf of ACT issued a press release on December 23, 2009, stating that "[w]e are appalled to learn from Perdue’s public statements that it now admits importing human sewage into [the Hudson Farm]," Perdue’s Ex. 145, although Perdue had never made any such admission. As late as February 27, 2010, Phillips continued to state in press releases that the pile contained chicken manure, despite the fact that she had no evidence to support that representation.*


So, we’ve seen that these groups (remember, our tax dollars pay for the services rendered to the Maryland School of Law) had no compunction about stating falsehoods and attempting to demonize this family in the press. They also did not follow their due diligence and offer the “offender” the opportunity to mitigate the situation – “In the notice, a plaintiff must provide the alleged violator with enough information to attempt to correct the violation and avert the citizen suit." Gaston III, 629 F.3d at 400; see also 40 C.F.R. § 135.3(a).”*


In the final analysis, how well was this legal case pursued? “Again, neither Bell [Plaintiff’s expert Bruce Bell, PhD] nor Plaintiff did any sampling that perhaps could have established this absolutely critical aspect of Plaintiff’s case.” *


What is more stunning, as noted by the judge, the “Plaintiff offers two explanations for this failure to do any addition testing or sampling.” * In short, they stated that they cannot go back in time and develop evidence proving this farm caused pollution and second, they stated that the “Waterkeeper is ‘not made of money’ and that the testing would have been too expensive.”* As noted in the Baltimore Sun Letter, the Waterkeeper has millions upon millions in revenue!


Even without the Waterkeeper’s tremendous war-chest, it was noted “[Defendant’s expert Professor Charles] Hagedorn testified that, like bacterial levels, nutrient levels in the litter, dust, or air inside or outside of the Hudson Farm poultry houses could have been tested by various methods, some of which are very simple and inexpensive. Hagedorn, Tr. BA at 41.”*


In the final analysis, not only did the Waterkeepers abuse their ability to use the Clean Water Act, but our taxes were used to harm a local farmer! As noted in Food Safety News:


Jim Perdue, Perdue Farms chairman, was quoted telling Maryland lawmakers that the lawsuit was “one of the greatest threats to the family farm in the last 50 years.”


Maryland Gov. Martin O’Malley said individual farmers cannot defend themselves against “deep pocket” litigation. He said it pits “academic freedom” against “bankrupting a farmer.”


In his concluding arguments, the judge noted: “While the undersigned has not hesitated to criticize Perdue and impose liability on Perdue for violation of a federal statute when appropriate, see Heath v. Perdue Farms, Inc., 87 F. Supp. 2d 452 (D. Md. 2000) (finding that Perdue willfully violated the Federal Fair Labor Standards Act), in this instance, the evidence at trial would suggest that Perdue should be commended, not condemned. Perdue appears to have tried to take the lead in addressing some of the very issues about which Plaintiff is concerned.”*


We cannot stand idly by and allow these environmental abusers to continue these actions. All of us want to protect our environment, but this must be done both legally and ethically!


* * * * * * * * *


* U.S. District Court – District of Maryland


Case Name: Waterkeeper Alliance, Inc. v. Alan & Kristin Hudson Farm et al

Case Number: 1:10-cv-00487WMN – Document Number: 209

Docket Text: FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge William M Nickerson on 12/20/2012. (aos, Deputy Clerk)

If the reader wants to see the full history behind these actions, click on this webpage from Save Family Farms.


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