BALTIMORE, Md., Dec. 20, 2012 - A U.S. District Court judge today threw out a suit by attorneys representing the Waterkeeper Alliance against a Maryland family and Perdue Farms, saying that the an environmental group led by Robert F. Kennedy Jr. failed to prove its allegations that runoff from the farm violated the Clean Water Act.

The decision by Senior Judge William M. Nickerson will be regarded as a setback for environmental groups who hoped to hold poultry integrators such as Perdue liable for pollution from farms where their poultry is grown under production contracts and as a major victory for the poultry industry, which helped finance the defense of the Berlin, Md., couple’s farm.

Waterkeeper sued contract chicken growers Alan and Kristin Hudson of Berlin, Md., and Perdue in March 2010, claiming that chicken manure seeped from the farm into local waterways that ultimately flowed into the Chesapeake Bay.

“The plaintiff has failed to meet its burden of establishing that there was a discharge of pollution from the poultry operation on the Hudson farm,” Nickerson said in a 50-page opinion. He also found “insufficient evidence to impose CWA liability on Perdue.” While a 1988 precedent found circumstances in which a poultry processor can be held liable for actions of its contract growers, the integrator must “manage, direct or conduct operations specifically related to pollution.”

In the Hudson case, he said, what Perdue required was “related to bird health and product quality, not pollution.” He added that the evidence suggested that because Perdue had educated its growers about management practices to limit pollution, the Maryland-based company “should be commended, not condemned. Perdue appears to have tried to take the lead in addressing some of the very issues about which the plaintiff is concerned,” Nickerson wrote.

“It appears to the court . . . that Waterkeeper has a goal of using the CWA to force integrators, like Perdue, to seriously alter, if not abandon, their operations on the Eastern Shore,” he said. The judge had telegraphed his sentiment in an order in March that denied requests for summary judgment, setting the stage for a trial in October. He wrote that “it seems clear that the original plaintiffs in this action were looking for an opportunity to bring a citizen suit under the CWA against some chicken production operation under contract with a major poultry integrator.”

National Chicken Council President Mike Brown applauded the ruling. “We feel like this was a lawsuit against all of us, and we are pleased that Judge Nickerson ruled that the Waterkeeper Alliance had not met the standard of preponderance of evidence in its argument. Today's ruling is a win for Delmarva's family farmers and against radical environmental activists who disregard the facts, sue first and ask questions later.”

He said that Maryland Gov. Martin O’Malley, who took the side of the farmers and criticized the University of Maryland Law School for allowing students at its legal clinic to represent the Waterkeeper, “said it best – that this unfair attack on a family farm represented an ‘ongoing injustice’.” Poultry industry groups including NCC and numerous state and county Farm Bureaus and Farm Credit of contributed to the Hudson’s legal defense fund.

The defense group issued this statement: “All along we've said that this lawsuit threatens family farms across the country, and the trial revealed the true agenda of the groups and of the individuals involved in the case – to use trumped up pollution charges to attack poultry farms. We believe it's clear that the Waterkeeper Alliance, the Assateague Coastal Trust  and the University of Maryland Environmental Law Clinic did not prove their case. They have continuously changed their story to find some reason to vilify a hardworking farm family just because they raise chickens. The best they could come up with is that dust from the poultry house fans and the small amount of litter from foot traffic in and out of the poultry house constitute a violation of the Clean Water Act.”



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