Judge scolds Waterkeepers for actions in pollution suit, pile of ‘chicken litter’ turned out to be biosolids
The case, Waterkeepers Alliance, Inc. v. Alan and Kristin Hudson Farm et al., was scheduled for trial in Federal District Court in Baltimore on April 16. But the parties are scheduled to have a settlement conference on March 28. If the case doesn't settle, a new trial date will be set.As you may recall from an earlier post, I thought the University of Maryland Law Clinic had no business
The settlement push follows a March order in which federal Judge William Nickerson denied all requests for summary judgment, allowing the case to proceed. The judge also denied a motion to prevent the Waterkeepers' experts from testifying at the trial.
But there wasn't a lot of other good news in the order for the Waterkeepers or the University of Maryland's environmental law clinic, which is representing the watchdog group in this case.
"As counsel might detect, there are elements of this litigation that the Court finds disturbing," Nickerson wrote, adding, "it seems clear that the original Plaintiffs in this action were looking for an opportunity to bring a citizen suit under the CWA (Clean Water Act) against some chicken production operation under contract with a major poultry integrator. When (Assateague Coastkeeper Kathy) Phillips discovered a large pile on the Hudson Farm that she believed to be chicken litter, she concluded that she had found her 'bad apple.'"
The Maryland Department of the Environment later inspected the pile and said the pile was biosolids - treated sewage waste from Ocean City.
"After the pile proved to be something other than chicken litter, Phillips continued to represent, apparently without any evidence, that the pile was tainted with chicken manure," Judge Nickerson continued. "Plaintiff's case has now gone from a large pile of uncovered chicken manure to small amounts of airborne litter from the exhaust fans, trace amounts brought out on shoes and tires, and a dustpan of litter left on the heavy use pads."
The conduct here seems outrageous. When a claim of a major violation was disprove, they simply went forward with the suit anyway, grasping at tiny straws to continue to try to ruin the family. The judge seems to agree:
Although the judge acknowledged the Waterkeepers motives in bringing the action "might not be relevant at this stage of the litigation," they may have relevance when deciding any punishment. He said he would also look at any of the defendants' efforts to comply with existing regulations. And he warned that, "While certainly rare, it is not unprecedented that attorney's fees can be awarded to a prevailing defendant in a CWA citizen suit."It would be a shame if the Hudsons won and the UMD Law Clinic were to be made to pay their part of their legal bills, wouldn't it? Maybe that's why O'Malley again came out against UMD Law Clinic:
Nickerson also criticized the law clinic's teaching techniques, saying their briefs were too long and too dense with footnotes to be "helpful in the context of litigation."
"This case, at this juncture, perpetrates an injustice," O'Malley wrote in November in a letter to law school dean Phoebe Haddon. "This case, given the facts now discovered, uses the economic weapon of unlimited litigation resources- namely, taxpayer supported State resources - to potentially bankrupt and destroy a family farming operation which has no recourse to similarly unlimited litigation assets."But then, it won't come out of the professors or students hide, will it, except to the extent that they are Maryland taxpayers.