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United States District Court Enters Judgment against Environmental Group, and in favor of Poultry Farm

Waterkeeper Alliance, Inc. v. Hudson
No. 10-487 (D. Md. Dec. 20, 2012)

by Wayne Heavener, Law Clerk
Semmes, Bowen & Semmes (

In Waterkeeper Alliance, Inc. v. Hudson, the United States District Court for the District of Maryland held that a non-profit environmental organization failed to establish liability against poultry farmers for alleged violations of the Clean Water Act (CWA). The plaintiff, Waterkeeper Alliance, Inc. (Plaintiff), suing under the citizen suit provision of the CWA, alleged that a farm owned by Alan and Kristin Hudson (“Hudson Farm”), and allegedly controlled by Perdue Farms, Inc. (“Perdue”), was discharging chicken manure into a tributary to the Pocomoke River. Plaintiff based its allegations largely upon aerial photos of supposed chicken manure piled on Hudson Farm’s land. Evidence during a bench trial demonstrated that the pile was not chicken manure, but bio-solid fertilizer. While evidence demonstrated that Hudson Farm maintained a greater amount of exposed cow manure than chicken manure, Plaintiff did not pursue the theory that cow manure discharge was responsible for pollutants in the nearby water system. Therefore, the Court entered judgment for Defendants, and against Plaintiff, because Plaintiff failed to demonstrate by a preponderance of the evidence that Defendants were discharging chicken manure into the nearby Franklin Branch of the Pocomoke River.

Waterkeeper Alliance, Inc. is a national non-profit engaged in efforts to promote water quality protection and restoration. Waterkeeper Alliance, along with other organizations, brought suit under the citizen suit provision of the CWA against Hudson Farm and Perdue. The plaintiffs alleged that the Hudson Farm was discharging, without a permit, chicken litter waste into a tributary of the Pocomoke River. During the course of the litigation, all plaintiffs were dismissed with the exception of Waterkeeper Alliance; Plaintiff had since amended its complaint to name Alan Hudson, individually, and Perdue (collectively, “Defendants”) as defendants. While Plaintiff proceeded against Mr. Hudson individually, Plaintiff sought to hold Purdue liable as having exercised sufficient control over the Hudson Farm’s operations to constitute liability under the CWA. Both parties moved for summary judgment, and on March 1, 2012, and the United States District Court for the District of Maryland denied both motions. The parties proceeded to a bench trial.

Testimony at trial revealed that Plaintiff’s claims originated from concerns harbored by one of its member organizations, the Assateague Coastal Trust (ACT). Members of ACT were concerned that pollution from local chicken farming would affect their enjoyment of the Pocomoke River. One of ACT’s members, Kathy Phillips, a Waterkeeper Alliance attorney, and a reporter from the Wall Street Journal conducted an aerial surveillance flight over the lower Delmarva Peninsula, looking for outdoor storage of poultry litter. Upon reviewing the photographs from the flight, Ms. Phillips concluded that there was a large uncovered pile of poultry manure located on the Hudson Farm. On December 17, 2009, Waterkeeper filed a Notice of Intent to sue Hudson Farm and Perdue. Plaintiff’s Notice of Intent prompted the Maryland Department of the Environment to send staff members to inspect the grounds. One staff member determined that the large pile on the Hudson Farm was not manure, but rather were bio-solids to be used as fertilizer. A second inspection of the premises revealed only trace amount of chicken litter, but a significant amount of cow manure coming from the herd of forty-two (42) beef cows kept in a small dirt field. While Plaintiff’s pointed out that cow manure posed a similar environmental threat as chicken manure, testimony predominantly involved chicken waste. Parties also contested whether any manure was draining in such a way that the bacteria therein could ever reach the Pocomoke River.

After receiving testimony and argument, the District Court found that Plaintiff had standing to bring its suit, but failed to demonstrate that there was discharge from the Defendants’ poultry operation. In order for any plaintiff to have standing to sue, (1) plaintiff must have suffered an “injury in fact;” (2) the injury must be fairly traceable to the defendant’s action; (3) and it must be likely that the injury will be redressed by a favorable decision. The Court pointed out that an environmental plaintiff satisfies the injury in fact requirement if the plaintiff uses the affected area, and are among those persons for whom the aesthetic and recreational value of the area will be lessened by the allegedly unlawful activity. The Court found that members of both Plaintiff non-profit and its member organizations, like ACT, used the Pocomoke River for recreational purposes. Therefore, assuming the facts alleged by Plaintiff were true, Plaintiff could make a reasonable case that discharge from Defendants’ poultry operation affected the area near the Franklin Branch and the Pocomoke River. Hence, the Plaintiff had standing to bring suit under the CWA.

Though Plaintiff had standing to bring suit, the Court concluded that Plaintiff failed to establish a violation of the CWA. Plaintiff had the burden of demonstrating discharge by a preponderance of the evidence. While the Court agreed that “it is possible that some particle of chicken litter made its way out of the house . . . into the Franklin Branch,” Waterkeeper Alliance, Inc. v. Hudson, No. 10-487, slip op. at 42 (D. Md. Dec. 20, 2012)(emphasis in original), Plaintiff failed to satisfy the preponderance of the evidence standard. Importantly, Plaintiff failed to demonstrate any actual eyewitness testimony of a discharge. While an environmental plaintiff need not always have eyewitness testimony of discharge to prevail under the CWA, the Court found that evidence of Defendants’ alleged discharge from poultry manure was insufficient to support Plaintiff’s allegations in this case. The Court pointed out that Plaintiff never seriously advanced a theory that Hudson Farm cows were the basis of CWA liability, but constrained its theory to chicken manure only. Furthermore, Plaintiff could not assert liability based upon cattle operations because such claims would have been beyond those set forth in Plaintiff’s Notice of Intent. Hence, the Court entered judgment in favor of Defendants, and against Plaintiff.