Where Do They Go From Here?

1/12/2013 7:00 AM
By Ann Wilmer Maryland Correspondent

Grateful Farmers Share Lessons From Environmental Lawsuit

BERLIN, Md. — By Jan. 20, it could all be over. The environmental advocacy group Waterkeeper Alliance has until then to appeal a federal judge’s Dec. 20 ruling that cleared Maryland farmers Alan and Kristin Hudson and Perdue Farms Inc. of accusations that they violated the Clean Water Act.

The Hudsons’ 300-acre farm in Worcester County, Md., has been in the family for more than 100 years, according to documents filed with the court. The couple raise broiler chickens for Perdue, as well as various crops, cattle and other livestock.

For months, the agricultural community had held its collective breath awaiting the court’s ruling in a lawsuit that has dragged on for three years.

Since U.S. District Judge William M. Nickerson’s ruling, the Hudsons have received congratulations from several legislators and from total strangers they pass in the street.

The couple sat down at their home on New Year’s Day to talk about lessons learned and what lies ahead.

Alan Hudson said that before this experience he got up most mornings feeling that he could handle just about anything that the day threw at him. Now, he’s not so sure.

What the couple would like more than anything, they say, is to get back to normal. But Hudson acknowledges that he is still on his guard and defensive.

The lawsuit has driven a wedge between farmers and environmentalists, and made many re-evaluate their support of environmental efforts. He said local members of Assateague Coastal Trust and Waterkeeper Alliance have told him they have resigned their memberships in those organizations.

The lawsuit cost the Hudsons dearly, although not nearly as much as it might have had it not been for the farming community — “hundreds of thousands of dollars,” Alan Hudson said, most of which came from supporters.

The most important lesson this experience has taught his family, Hudson said, is about the solidarity of the agricultural community.

“I want to say thank you to so many people,” he said. “The agricultural community rose to our defense,” sparing the family from bankruptcy.

Local people, including the Hudsons, care about the environment, the couple said, noting that it was hard to stand accused of polluting the water.

There have been other lessons, too.

Government has not succeeded in creating a “level playing field” for everyone, especially small farmers, the Hudsons said.

When plaintiffs and defendants meet in federal court, both sides usually have “meat in the fire,” as Alan Hudson described it. Waterkeeper Alliance, which brought the lawsuit against the Hudsons and Perdue Farms, had none, he said.

Waterkeeper Alliance was represented free of charge by the taxpayer-funded University of Maryland Environmental Law Clinic and its director, Jane F. Barrett, who has a history of working with the Waterkeepers.

“Win or lose — there was no consequence to Waterkeepers,” said Hudson, explaining that a losing plaintiff in a civil suit does not automatically have to pay the other side’s legal expenses.

However, a judge could rule that Waterkeeper Alliance should make financial restitution, and Perdue Farms announced Wednesday that it is seeking up to $2.5 million in attorney fees it spent defending itself.

According to The Associated Press, the company said the court had noted that while defendants are “not normally entitled to recover their legal fees, such an award would not be unprecedented.”

A telephone call and email by the AP seeking comment from the alliance was not immediately returned.

The environmental law clinic’s director said the motions were not unusual or unexpected. The clinic would respond, Barrett told the AP.

Among the other lessons that Hudson and his wife have taken away from this experience is not to accept things at face value.

Hudson said he regrets that he is less trusting of people who ride by his farm or stop to look at his cows. He’s wary, if not suspicious, of self-proclaimed “environmentalists.”

Weeks before Waterkeeper Alliance announced its plans to sue them, Hudson noticed airplanes flying over his farm. He thought nothing of it since there is an airfield nearby, but he later heard that Kathy Phillips of the Assateague Coastal Trust had been doing aerial surveillance in search of a local farmer who might be in violation of the Clean Water Act.

What Phillips actually found on the Hudson farm was a pile of biosolids — treated waste legally transferred from the Town of Ocean City for use as fertilizer because of its high lime content.

Phillips mistakenly assumed it was chicken litter, according to inspectors from the Maryland Department of the Environment who inspected the site after Phillips filed notice of intent to sue.

Roughly two months later, Kristin Hudson came home from picking the children up at school to a phone message from a reporter at the Baltimore Sun seeking their reaction to the pending lawsuit.

It was the first they’d heard about it. In the hours that followed, their phone rang off the hook with reporters from various news media calling for a reaction.

From the beginning, Alan Hudson has said that if local environmentalists had come to him with their concerns, he would have done his best to address anything that required correction.

More than a year later, he was deposed for the first time — an ordeal that lasted from 9 a.m. until nearly 7 p.m. It was the first time he saw his accusers, although neighbors reported seeing Phillips taking water samples from a ditch bordering the nearby sand and gravel operation. He has yet to see any of his accusers look him in the eye, he said.

In the final analysis, Hudson said, the judge’s ruling validated his conclusion that the environmentalists’ goal was not to protect area waterways but to find a way to attack the poultry industry.

Onlookers, within and outside the farm community, assumed early on that charges for improperly stored chicken litter, which turned out to be treated biosolids, would be dropped.

Kristin Hudson described their opponents like “a dog with a bone.” They refused to admit they were mistaken about the chicken litter, so it wouldn’t surprise the Hudsons if they appealed the judge’s decision.

However, events unrelated to the lawsuit would appear to undermine the Waterkeeper position.

Long before they had even heard of Waterkeeper Alliance, the Hudsons had a comprehensive nutrient management plan that outlined best management practices, or BMPs, on their farm. They update the plan every six to 12 months with the USDA’s Natural Resource Conservation Service.

To comply with regulations, the farm has a concentrated animal feeding operation, or CAFO, permit issued jointly by Maryland Department of the Environment and NRCS for which the Hudsons applied in 2009 before they popped up on Waterkeeper’s radar.

CAFO permits require a management plan, which NRCS will help farmers to write. Since only two NRCS staff members are qualified to write these plans for farms that grow livestock as well as poultry, the Hudsons were on a waiting list.

NRCS also offers a cost-share program to help farmers finance the preparation of these plans. The Hudsons successfully applied for the grant and hired a consultant.

Their plan had reached the public comment stage by the time the Assateague Coastal Trust discovered it, too late to stop the approval process.

In what was perhaps a tactical error, Waterkeeper Alliance went to the court-ordered mediation with a proposal that Hudson contribute $2 million to their organization and agree to allow the environmental group a seven-year oversight of his farming operation complete with periodic water testing at their discretion to settle the suit.

Hudson declined.

Claims that Hudson’s operation polluted the Pocomoke River some six to seven miles southeast of their farm by way of Franklin Branch didn’t take into account that water draining from the farm would have to pass through several other farms and a heavily fertilized golf course to do so.

Life will eventually settle into a new normal for the Hudson family, but the couple acknowledge they will be looking over their shoulders and second-guessing themselves, and they will be quick to consult a lawyer before signing anything.

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