Maryland Chicken Case Goes to Trial Smaller Than When It Started

By Dan Flynn | October 10, 2012 It's been more than two years since a federal bench trial in Oklahoma over chicken industry practices ended, but that judge has yet to issue a ruling. Now a three-week bench trial is underway in Baltimore for the case of Waterkeeper Alliance Inc. v Alan and Kristin Hudson Farm et al. This one is also about industry practices in raising chickens and keeping water runoff clean. It's easy to get the impression that Senior U.S. District Court Judge William M. Nickerson will not have any difficulty making up his mind in the Baltimore case. Brought by the New York-based Waterkeeper Alliance under the federal Clean Water Act against the diversified family Hudson Farm, which with Perdue Farms, the controversial case goes back about three years. At issue is the claim by environmentalists that the Hudson chicken farm and Perdue are polluting a stream that eventually flows into the Chesapeake Bay. An environmental victory would be seen as an historic blow to Maryland's family farms. Involvement by the University of Maryland's environmental law clinic on the side of the environmentalists against the family farm has stirred up the most controversy. If it ever happens again, the Maryland General Assembly has appropriated $250,000 to defend family farms against such environmental challenges by non-government entities. In a pre-trial memo to all counsel of record, Judge Nickerson did not give the UM law students much of a grade. He called them out for including "767 single-spaced, small-fonted footnotes" that "not only circumvents the spirit if not the letter of the Local Rules, but also makes for less than compelling advocacy." Nickerson – appointed to the federal bench by President George H.W. Bush – said the law students' style "might be appropriate for legal journals that few attempt to read, it is not helpful in the content of litigation." Settlement could not be reached by the parties before the trial got underway. Nickerson's memo outlined how he could decide the case either way depending on how decision makers weighs the evidence and make credibility determinations. He does, however, note that the scope of the plaintiff's case has narrowed. An original plaintiff, Kathlyn Phillips, in December 2009 claimed aerial photographs on the Hudson Farm showed a pile of chicken litter on the premises. Maryland officials investigated and found it was a bio soils mound that was eventually moved away from farm ditches and covered with plastic. The UM Environmental Law Clinic nevertheless filed the federal CWA lawsuit. The federal court removed Phillips and her organization as plaintiffs a few month later. "Plaintiff's case has now gone from a large pile of uncovered chicken manure to small amounts of airborne litter from exhaust fans, trade amounts brought out on shoes and tires, a dustpan of litter left on the heave use pads," Nickerson said in his pre-trial memo. While the Oklahoma and Maryland cases both involve chicken litter, they are very different. The State of Oklahoma, under former Attorney General Drew Edmondson, took on 14 chicken companies for their practice of contracting with farms in the one million acre Illinois River watershed covering the state's border region with Arkansas. The trial now being heard in U.S. District Court for Maryland involves just the Hudson Farm and Perdue as the defendants. It was filed at the behest Waterkeeper Alliance, which is chaired by Robert F. Kennedy, Jr., second-generation heir to the Joseph P. Kennedy fortune. America's $197.5 billion chicken industry has long relied upon contracts between farms that raise chickens until they are large enough to be picked up and slaughtered by one of the big poultry companies. In August 2012, the industry slaughtered over 780,000 chickens weighing an average of 5.81 pounds. The so-called chicken litter left behind – a composite of bedding material and manure –  is often spread on farmland as fertilizer. It is that runoff that might violate CWA if it is proven to have gone from fields to farm ditches, to steams and larger waterways. With Salmonella poising the largest threat of  hospitalization from foodborne illness in the U.S., how chickens are raised is a major food safety issue. Best practices now call for chicken litter to be moved from all houses and buildings that were used to raise chickens. After cleaning, swabs should be used to check for Salmonella. Large farms with multiple houses and short turnaround times often have Salmonella problems. Hudson Farms and Perdue are not without resources in court. Safe Farm Families, with financial supporters in most every county in Maryland and 28 states, is helping with defense costs for the Hudson's. Perdue helped form the group. New economic data from the National Chicken Council and US Poultry & Egg Association says the industry provides 1.01 million jobs, $47 billion in wages and pays $17.2 billion in taxes. Edmondson, the former Oklahoma AG tried unsuccessfully to run for Governor and is now out of government. He brought the Illinois river case in front of U.S. Judge Gregory K. Frizzell for the District of Oklahoma. Frizzell heard the case at trial, which continued on and off beginning in late 2009 and ending in February 2010. © Food Safety News More Headlines from Food Policy & Law » Tags: chicken, Maryland, Oklahoma, poultry litter