Poultry pollution suit goes to trial

A dispute that started three years ago when environmentalists accused an Eastern Shore chicken farm and one of the nation's largest poultry companies of polluting a stream that ultimately flows to the Chesapeake Bay comes to a head Tuesday in a Baltimore federal courtroom.

The trial, expected to last up to three weeks, begins in the Waterkeeper Alliance's lawsuit against Berlin farmers Alan and Kristin Hudson and Perdue Farms, the Salisbury-based company for whom the Hudsons raised birds.

The legal struggle is being tracked by environmentalists, farmers and the poultry industry, as the Waterkeeper group tries to hold a poultry company legally responsible for the first time for pollution caused by one of its contract growers.

"This could be the landmark case that changes how we do business when it comes to producing our meat,'' said Tom Jones, president of the Assateague Coastal Trust, a Berlin-based environmental group that helped bring the suit. "This is a national issue, and it goes beyond just chickens; it goes to cattle, hogs and other poultry operations."

"We feel like it's a lawsuit against all of us," said Tom Super, spokesman for the National Chicken Council, who contended a ruling against the Hudsons and Perdue would set "a dangerous precedent."

A preliminary ruling in the case denied Perdue's bid to be excused, making it at least potentially liable if the court rules the farm polluted the water.

Much is at stake as well for the New York-based Waterkeeper Alliance and its lawyers, the environmental law clinic of the University of Maryland law school.

Judge William M. Nickerson, who is to preside at the trial, expressed some skepticism earlier this year about the environmental group's evidence that the farm was the source of high levels of fecal coliform bacteria found three years ago in a drainage ditch that runs by the Hudsons' chicken houses.

The judge went even further, though, noting he could order the environmental group to pay the Hudsons' and even Perdue's legal expenses if he found no violation. Those costs could reach into the hundreds of thousands or even millions of dollars.

Supporters of both sides have engaged in a public-relations battle, through press releases, rallies, websites and videos. Farm groups and Perdue portrayed the Hudsons as victims of a "radical environmental group" out to destroy modern agriculture.

Lawyers for both the Hudsons and the Waterkeeper Alliance issued brief statements ahead of the trial saying they look forward to having their day in court. Perdue spokeswoman Julie DeYoung went further, though, declaring it "ironic" that the lawsuit targets "one of the most environmentally progressive poultry companies" in the country.

DeYoung said in her emailed statement that farmers Alan and Kristin Hudson face possible bankruptcy and could wind up as "collateral damage in the Waterkeepers' attack on the poultry industry."

The Assateague Coastal Trust and the Waterkeeper Alliance didn't set out to drive the Hudsons out of business or even to target Perdue, Jones said. They are concerned with cleaning up the Chesapeake Bay and its tributaries, he said, and believe the Eastern Shore's concentration of chickens is part of the problem.

Three years ago, while flying over the lower Shore, the groups' representatives spied a pile of what they thought was chicken manure, with water trickling from the pile into a nearby drainage ditch. Samples taken downstream from the farm detected high levels of fecal coliform, indicating the water was fouled with animal waste.

The activists released the photos publicly and sent the farm and Perdue letters threatening to sue if they didn't stop the pollution. When inspectors for the Maryland Department of the Environment checked the farm, though, they declared that the pile was treated sewage sludge from Ocean City, not chicken manure. The Hudsons were ordered to move it back from the ditch and cover it, and later were cited for improper storage of the material. But the state closed its investigation without ever finding the source of the pollution in the ditch, saying it could have come from wildlife or somewhere else.

Lawyers for the Hudsons and Perdue have argued that the Waterkeepers have no evidence, either through photographs or witnesses, of chicken manure washing off the farm. They also contend that if any pollution in the ditch came from the farm, it must have come from 66 cows the Hudsons also raise.

The UM environmental law clinic, in its pretrial filings, has laid out a circumstantial case, arguing that the pollution had to come from the Hudson farm, and at least some of it came from the 80,000 chickens kept in two long houses near the ditch. Photos submitted to the court show large ventilation fans used to cool the chicken houses that are encrusted with brownish debris. Other photos show a shallow swale between the houses that appears to funnel rainfall into a corrugated pipe that empties into the ditch.

Environmentalists have long argued that so-called "factory farms" are major sources of water pollution because hundreds and even thousands of chickens, hogs or cattle are raised in close quarters, without adequate measures to keep the massive amounts of waste generated from washing into nearby streams.

Federal and state governments have tightened regulation of large-scale animal farms, requiring many to get pollution discharge permits and take precautions to prevent fertilizer from washing into nearby streams.

Activists want to extend legal responsibility for that waste from the farmers tending the animals to the large vertically integrated meat production companies like Perdue, for which the growers work under contract. In the poultry industry, the companies own the birds, furnish the feed and often dictate how they're to be raised. But the waste left behind by the flocks is the farmer's to deal with.

Poultry companies have balked at taking responsibility for the waste. And many farmers argue that without the chicken manure they'd have to pay for chemical fertilizer to use on their fields.

But environmentalists contend there's too much manure being generated by the large flocks for farmers to use it all properly. Excess nitrogen and phosphorus in the animal waste washes off fields into nearby streams, contributing to algae blooms and the formation every year of a massive "dead zone" in the middle of the bay.

Patrick A. Parenteau, a professor at the Vermont Law School, said a ruling against Perdue would be a first, but cautioned that his reading of the court record so far leaves him wondering if the Waterkeeper Alliance can prove pollution came from the farm.

"The difficulty of proving a discharge here looks like it could be significant," he said. "The plaintiff has the burden of proof. … And Judge Nickerson has signaled the plaintiffs have a problem. They'd better come forward with some convincing evidence."

It's rare, but Parenteau said he knows of one failed pollution lawsuit where a judge "socked" an environmental group to pay the other side's legal expenses.

"It's a shame that it's gone this far," said Lee Richardson, who raises chickens for Perdue on his farm near Willards in Wicomico County. He said the case has left him and other farmers feeling threatened.

The Assateague Coastal Trust's Jones, a retired Salisbury University biologist, said the lawsuit isn't meant to threaten farmers, and he acknowledges that Perdue has been more "environmentally sensitive" than other poultry companies.

"What's being ignored here are the environmental impacts," said Jones. "Some way we've got to solve this. We've got to break this jogjam."

An earlier version misstated the number of cows the Hudsons own. The Baltimore Sun regrets the error.