Update Letter In Maryland Clean Water Act Case

Federal Judge in Maryland Clean Water Act Case Has Harsh Words Against Assateague Coastal Trust Executive Director and University of Maryland Environmental Law Clinic

In a letter to counsel for the plaintiff and the defendant in the federal Clean Water Act case of Waterkeeper Alliance, Inc. versus Alan and Kristin Hudson Farm and Perdue Farms Inc., U.S. District Court Senior Judge William Nickerson has decided the case will go to trial, unless the parties agree to a settlement, and in his letter he has harsh words about an original party to the lawsuit against Mr. and Mrs. Hudson and Perdue Farms Inc.

The lawsuit, with Kathlyn Phillips of the Assateague Coastal Trust as a Plaintiff, originally alleged that Mr. and Mrs. Hudson and Perdue Farms Inc. were in violation of the federal Clean Water Act because of water pollution from what was described as a pile of chicken manure; later found to be something else. In his March 1, 2012 letter to counsel, Judge Nickerson wrote:
“As counsel might detect, there are elements of this litigation that the Court finds disturbing. Particularly from the deposition testimony of former Plaintiff Kathlyn Phillips and the documents referenced in that deposition, 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. When 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.” 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. 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.”

Judge Nickerson also had criticism of the Maryland taxpayer supported University of Maryland Environmental Law Clinic that provided free legal representation to the Waterkeeper Alliance.
“Finally, to the extent that this litigation is intended to be a learning experience for the students from the University of Maryland clinic, I feel obliged to make a comment regarding the briefing submitted on behalf of Plaintiff. Plaintiff’s summary judgment motion was 48 pages with 341 footnotes; Plaintiff’s Opposition, 49 pages with 288 footnotes; Plaintiff’s Reply, 24 pages with 138 footnotes. Submitting briefs near the maximum page limit permitted under the Local Rules but with 767 single-spaced, small-fonted footnotes not only circumvents the spirit if not the letter of the Local Rules, but also makes for less than compelling advocacy. While this style might be appropriate for legal journals that few attempt to read, it is not helpful in the context of litigation.”

Read the judge's entire letter here.

The trial is schedule for mid-April in Baltimore.