By Timothy B. Wheeler, The Baltimore Sun
8:57 PM EDT, August 27, 2013
A federal judge on Tuesday denied a bid by poultry producer Perdue and an Eastern Shore farmer to make the Waterkeeper Alliance pay more than $3 million in attorneys' fees for its failed lawsuit alleging that the company and its contract grower were polluting a Chesapeake Bay tributary.
Judge William M. Nickerson concluded that while he believed the New York-based environmental group had mishandled preparation of its case, that did not merit the rare sanction of making the losing alliance pay the other side's attorneys.
But that might not be the end of the bitter, nationally publicized legal saga, which began nearly four years ago. The lawyer for Berlin farmers Alan and Kristin Hudson said late Tuesday that he's planning to seek reimbursement from the state, even though a Perdue-supported group, SaveFarmFamilies.org, paid his bill.
Nickerson ruled last December after a 10-day trial that the Waterkeepers had failed to produce sufficient evidence that waste from Hudson's two poultry houses was responsible for "alarmingly high" levels of bacteria and nutrient pollution found in drainage ditches flowing from the farm.
Nickerson said he was convinced that the ditch had been contaminated by waste from Hudson's herd of cows, which was not part of the lawsuit and not subject at the time to regulation.
Lawyers for Hudson and Perdue, encouraged by written comments from the judge criticizing the environmental group's case and its motives, filed petitions asking to be reimbursed for more than $3 million in costs and attorneys' fees. Nickerson granted only about $28,000 in costs.
Nickerson said the environmental group's claim was not a frivolous one, but reiterated his earlier criticisms of the Waterkeepers and leveled new ones, including not seriously trying to settle the case before it went to trial.
"It is most unfortunate that so much time and so many resources were expended on this action that accomplished so little," he wrote.
The case had been closely watched because if it had been successful, it would have been the first to find a large poultry company responsible for pollution caused by one of its contract growers.
The judge's decision on attorney's fees also was being followed, because some feared it could discourage environmental groups from taking suspected polluters to court.
Marc Yaggi, executive director of the Waterkeeper Alliance, said in a statement he was "pleased" with Nickerson's ruling. He said the federal Clean Water Act was written to encourage citizens' groups to bring lawsuits to enforce the law.
Perdue Farms spokeswoman Julie DeYoung said the Salisbury-based company was disappointed. Perdue had sought $2.5 million for its attorney's fees, she said, so that "the Waterkeepers and other organizations like them would think twice about pursuing legal action that uses hard-working American families as pawns in their attack on modern agriculture."
Jane F. Barrett, director of the University of Maryland environmental law clinic, which represented the environmental group, said she "respectfully" disagreed with Nickerson's characterization of the settlement negotiations as unserious. She said the judge had not been privy to all the verbal back-and-forth.
SaveFarmFamilies.org, which raised nearly $400,000 toward the Hudsons' defense, pointed out that Maryland lawmakers had passed legislation allowing the couple to seek reimbursement from the state for up to $300,000 of their legal costs. The measure, included in the budget bill this year, came after many farmers and rural lawmakers complained about the state-funded Maryland law school's role in pursuing the case.
George F. Ritchie, the Hudsons' lawyer, said he plans to pursue state reimbursement for at least some of the $500,000 in fees he asked the court to award.
"The issue is should the fees have been incurred, regardless of who pays them," he said. "All the people down on the Shore who attended chicken dinners and wrote checks … ought to be able to recoup that."
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