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Lifestyle B'More Green

Eastern Shore farmer, Perdue seek attorneys' fees

The lawsuit may be over, but the bitter legal battle continues.

Lawyers for poultry producer Perdue and an Eastern Shore farmer are asking a federal judge to award them more than $3 million in attorneys' fees and expenses from the Waterkeeper Alliance, the New York-based environmental group that failed to prove they were polluting a Chesapeake Bay tributary.

Pointing to written comments by the deciding judge that were critical of the plaintiffs' motives and the strength of their case, the successful defendants contend they're justified in seeking reimbursement for a case they argued should never have gotten that far.

"It's only fair," said Julie DeYoung, spokeswoman for the Salisbury-based company. She noted that U.S. District Judge William M. Nickerson had warned the alliance before trial that he could make it pay the other side's attorneys' fees and expenses if he found their case frivolous. "They had the option to call it quits," she added.

"The case shouldn't have been brought," added George F. Ritchie, lawyer for Berlin farmer Alan Hudson, who said his client was "collateral damage" for the alliance as it sought to get at Perdue and force reforms in how animals are raised for meat.

Following a 10-day trial in Baltimore federal court last fall, Nickerson ruled Dec. 20 that the alliance had not produced sufficient evidence that waste from Hudson's two chicken houses was responsible for pollution found in drainage ditches flowing from the farm ultimately to the Pocomoke River. He said it seemed more likely the contamination came from Hudson's herd of more than 40 cows.

In a filing this week supporting his claim of $500,000 in attorney's fees, Ritchie wrote that the lawsuit was "needless and groundless" and for Hudson "an excruciating ordeal that has left its traumatic mark on his family despite the court's ruling in his favor."

"When [the Waterkeeper group] learned that what it had taken for an uncovered pile of chicken manure was actually a pile of harmless biosolids, it nevertheless proceeded with a lawsuit," Perdue's lawyers wrote in a separate filing.

The case was being watched nationwide because the Waterkeeper group was seeking to hold Perdue liable as well as Hudson, since the farmer raised Cornish game hens under contract with the company. Observers had predicted a ruling against Perdue could trigger upheaval across the poultry and pork industries.

Now, according to Patrick Parenteau, a professor at Vermont Law School, the case could set a different kind of national precedent.

"Even if he cuts it by two-thirds, it's devastating," said Parenteau, who is senior counsel to the school's environmental and natural resources law clinic.

"Obviously, an award of over $1 million would be crippling to the plaintiffs in this case and would send a chilling message across the country to other potential citizens seeking to enforce these environmental laws," Parenteau said in an interview taped for the "Marc Steiner Show" on public radio station WEAA-FM.

"So in some ways," he added, "this ... last phase could be even more important than the trial itself."

The alliance's executive director, Marc Yaggi, declined through a spokesman to further discuss the case. The group is scheduled to file its response to the fee claims on Feb. 25.

The alliance supports more than 200 water-quality watchdog organizations on six continents, including 16 in the Chesapeake Bay and Atlantic coastal bays watersheds. Its latest annual report listed projected revenues of $4.6 million last year.

Ritchie acknowledged that his fees "for the most part" have been paid through SaveFarmFamilies, a group set up with Perdue's help that raised funds for Hudson's defense. But he said the law allows for the winning side in such cases to seek reimbursement.

The day the verdict was released, Perdue's vice president for environmental sustainability, Steven Schwalb, declared at a Baltimore news conference that "it's a time for healing." He said the company hoped to restore relations with "responsible" environmental groups, saying he planned to reach out to the Assateague Coastal Trust, a member of the Waterkeeper Alliance based in Berlin that had helped initiate the lawsuit, though it was ultimately removed as a plaintiff by the judge.

DeYoung said the demand for fees was "very consistent" with Schwalb's statement. "Quite frankly, we don't consider the Waterkeeper Alliance a responsible environmental group."

Kathy Phillips, the Assateague Coastkeeper, said Perdue has yet to contact her group. She declined to comment on the fee issue.

Parenteau noted that Congress had encouraged citizen groups to file lawsuits to enforce the federal Clean Water Act. Attorneys' fees aren't automatically awarded to the winning side, he noted, so the judge will have to weigh "whether you had reasonable grounds to bring the case."

tim.wheeler@baltsun.com

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