Judge to rule in Perdue chicken farm case by end of year

The plaintiff and defendants in a closely watched lawsuit over alleged pollution of a Chesapeake Bay tributary by a Berlin-based, family-owned farm and Perdue Farms Inc. presented almost four hours of closing arguments to a standing-room-only crowd.

Senior U.S. District Judge William N. Nickerson, who is presiding over the bench trial in U.S. District Court in Baltimore, declined to rule from bench. Instead, he said he would decide by end of the year.

Testimony in the case ended on Oct. 24, but Nickerson asked the parties to submit proposed Findings of Fact and Conclusions of Law by Nov. 14 and responses by Nov. 21, before hearing closing arguments on Friday.

Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and also represents plaintiff Waterkeeper Alliance Inc., argued Friday that photographs introduced at trial showed “obvious indications of pollutants being pushed out” and that this case is exactly why Congress passed the Clean Water Act.

But attorneys for Salisbury-based Perdue and contract grower Hudson Farm have said the farm operates like others and there is no evidence of pollution from the farm’s chicken operations. They have called the lawsuit meritless and vindictive.

Waterkeeper Alliance has alleged that Hudson and Perdue have repeatedly discharged and continue to discharge pollutants through a point source into the Pocomoke River and the Chesapeake Bay. Such discharge, it alleged, violates the Clean Water Act.

The alliance alleged that water samples taken from a drainage ditch downstream of Hudson Farm showed high levels of the fecal coliform, E.coli bacteria, nitrogen, phosphorous and ammonia. The plaintiff said Perdue should be held liable for the pollution because Perdue is “intimately involved in and controls each stage of the poultry-growing process at its contract growers, including Hudson Farm.”

Michael Schatzow, a Perdue attorney at Venable LLP in Baltimore, said Friday that the plaintiffs have a weak case and a broader agenda.

“They want to win the weakest possible case, because if they win the weakest case, they can go after everyone,” Schatzow said during closing arguments.

The plaintiffs are waging “a war against the poultry industry,” Schatzow said, adding that there is no evidence of any discharge of pollutants from the poultry operation on the Hudson’s farm.

Rather, he said, the cows on the Hudson’s farm were the source of the pollution.

“They are not confined,” he said. “They roam the Hudson farm freely and produce … tons of manure.”

George F. Ritchie, the Hudsons’ attorney at Gordon Feinblatt LLC, said his clients are not a major corporation but a family of farmers who have tilled the land for more than 100 years and have been living a nearly “three-year nightmare” since the lawsuit was filed on March 1, 2010.

“This litigation threatens to ruin his farm and his family,” Ritchie said. “There is no fundamental fairness in hanging [the Hudsons].”

Farmer Alan Hudson testified during the trial that the lawsuit has been especially difficult for his 6-year-old son and 8-year-old daughter.

“It’s been extremely hard on me and my wife, but it’s been even harder on my children,” Hudson said.

Barrett said Friday that she has no doubt that the litigation has been difficult for the family.

“But you have to live with your choices,” she said.

Hudson testified during trial that he did not have a management plan in place to prevent groundwater contamination for four years, and acknowledged using hundreds of tons of manure and bio-solids on the fields of his 200-acre Worcester County farm.

He admitted to applying 240 tons of poultry waste in 2007 and 210 tons in 2008, and acknowledged not having a nutrient management plan in place from 2004 through 2007. Such plans are required under the Water Quality Improvement Act to prevent groundwater contamination.

Once the nutrient management plan was in place in 2008, Hudson said, he did not keep records as to the application of chicken manure to his fields.

Charles Hagedorn, a professor of microbiology at Virginia Tech, testified for the defense during trial that it would have been a difficult feat for pollutants from poultry on the farm to enter the Chesapeake Bay tributary.

“These fecal bacteria rapidly die off because it is such a foreign environment to them,” he said.

Hagedorn also testified that any fecal matter detected at the farm was not from chickens but from the 40 cows on the Hudson farm.

Barrett said on Friday that little weight should be given to Hagedorn’s testimony because he lacked the necessary expertise.

“He has an opinion about something he is not an expert on,” she said.

In response, Perdue’s attorney said the professor is an expert in identifying sources of fecal bacteria in rural agricultural watersheds.

In response to the defendant’s argument that the case was weak, Barrett noted after closing arguments that the case has survived a motion to dismiss and a motion for summary judgment.

Waterkeeper Alliance is seeking $300,000 in compensation and $2 million in attorneys’ fees, as well as a remedial injunction ordering the Hudsons and Perdue to pay the costs of any environmental restoration or remediation deemed necessary to comply with the Clean Water Act. They are also seeking the right to monitor operations in the future.