Eastern Shore farm pollution lawsuit upheld

Federal judge denies bid by farmers, Perdue to dismiss Waterkeeper complaints

July 21, 2010|By Timothy B. Wheeler, The Baltimore Sun

A federal judge has denied a bid by Perdue Farms and an Eastern Shore chicken grower to dismiss a lawsuit accusing them of polluting a Chesapeake Bay tributary, clearing the way for trial on the potentially pioneering legal case.

Judge William M. Nickerson of the U.S. District Court in Baltimore ruled Tuesday that the lawsuit brought this year by the Waterkeeper Alliance could go forward, though he struck two environmental groups as plaintiffs on a technicality.

The Waterkeeper Alliance, the Assateague Coastal Trust and Assateague Coastkeeper Kathy Phillips filed suit in March alleging that harmful levels of bacteria and nutrient pollution were flowing from a drainage ditch on a Worcester County farm into a branch of the Pocomoke River. It is the first lawsuit to target Maryland's chicken industry for water pollution, and it named not just the farmers as defendants but poultry giant Perdue Farms, based in Salisbury, for whom the chickens were being raised.

Lawyers for the farmers, Alan and Kristin Hudson of Berlin, and for Perdue had petitioned the judge to dismiss the case on a variety of legal grounds, and Perdue had argued that it should be let out of the lawsuit. The company contended that it was not liable for any pollution because the Hudsons owned the farm and held the government permit to raise chickens there, not Perdue. The couple was raising 80,000 Cornish game hens under contract with Perdue, a common arrangement in the poultry industry.

The judge rejected that argument, saying that any person or company can be held responsible for violating the federal Clean Water Act if it does the offending work or exercises control over it. The environmental groups contend that Perdue dictates the conditions under which its birds are to be raised, so it should be held accountable for any pollution.

Jane F. Barrett, director of the University of Maryland environmental law clinic, which helped bring the environmental groups' lawsuit, said the judge's ruling was significant because it was the first in a federal court to say a poultry company could be held liable for the actions of its contract growers. There have been similar rulings in state courts in Alabama and Kentucky, she said.

Perdue posted a statement on its website from its lawyer stressing that the ruling only allowed the lawsuit to proceed, but didn't mean it would succeed.

"This is a very narrow, preliminary ruling on a routine procedural motion," said Perdue lawyer Michael Schatzow. "The ruling has nothing to do with the merits of the case. We are looking forward to prevailing once the case itself is argued in the courtroom."

The Hudsons' lawyer could not be reached for comment.

Scott Edwards, legal director for the Waterkeeper Alliance, said he was encouraged by the judge's ruling.

"The court didn't buy into Perdue's argument that … that they couldn't possibly be liable for the waste coming off of these farms," Edwards said. He contended that large poultry "integrators" like Perdue effectively control the farms where their birds are being raised, yet deny responsibility for the animals' waste.

When they first warned they would sue, the environmental groups released an aerial photograph of what they said was a pile of chicken manure next to the drainage ditch. State environmental officials later said the pile was composted sewage sludge from Ocean City.

Judge Nickerson said the apparent misidentification of the pile didn't matter because the groups' central claim was that runoff from the farm was polluting the ditch. State environmental officials fined the Hudsons $4,000 for improper storage of sewage sludge, but closed their investigation without further action, saying they couldn't be sure the bacteria in the ditch came from the farm and not from other sources, such as wildlife.

The lawsuit stirred controversy when it was filed, as Perdue chairman Jim Perdue called it a threat to the state's poultry industry. Maryland lawmakers responded by threatening to cut off funding for the University of Maryland's law clinics, but ultimately settled for requiring the school to report on how its clinics operate and are funded.

The judge did bar the Assateague Coastal Trust, the Assateague Coastkeeper and the two groups' director, Kathy Phillips, from going forward as plaintiffs, declaring that the lawsuit had failed to list their addresses as required by law. The remaining plaintiff is the Waterkeeper Alliance, an international network of water-quality watchdog groups, with which the Assateague Coastkeeper is affiliated.

tim.wheeler@baltsun.com

twitter.com/baltsungreen

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