SALISBURY, Md. (February 7, 2013) – Today, attorneys for Perdue Farms Inc. filed a memorandum further supporting its request for reimbursement of litigation costs for their recent victory in the United States District Court for the District of Maryland, and calling on Judge William Nickerson to hold the Waterkeeper Alliance accountable for putting forth such an irresponsible case. 

“In the Waterkeepers’ closing argument University of Maryland (UM) Environmental Law Clinic Director Jane Barrett said that she told her son that when you become an adult and start making choices, you have to live with those choices. This is what this filing is about,” said Herb Frerichs, Perdue Farms General Counsel and 1988 UM Law graduate. “The Waterkeeper Alliance and Maryland School of Law made a choice to continue this litigation beyond the point where it was no longer defensible.

“Based on their zealous determination to proceed to trial and the Court’s characterization of their actions as ‘not responsible’ and that Perdue should be ‘commended, not condemned,’ we are fully justified in asking the court to grant us reimbursement for the costs of defending ourselves,” said Frerichs. Alan and Kristin Hudson, the fourth-generation family farm also named in the suit, also filed for reimbursement of their litigation costs.

The Waterkeeper Alliance had multiple opportunities to withdraw: when the supposed chicken manure pile was found to be legal biosolids, when the Maryland Department of Environment officially cleared the Hudsons and determined the situation to be corrected, and again following the Court’s summary judgment ruling. That ruling made clear that the record would not support their claims at trial, and in fact, the judge cautioned the plaintiffs against proceeding with the case and warned that he could award legal fees to the defendants.
“The Waterkeeper Alliance chose to ignore the Court’s caution and persisted with their groundless ideological case. This abuse of a Clean Water Act (CWA) citizen suit could have bankrupted a farm family and wasted millions of dollars of state resources as well as those of a Maryland company," said Frerichs. Because the Waterkeeper Alliance’s lead counsel is paid by Maryland taxpayers and has all of the students and taxpayer-paid Fellows at the University of Maryland Environmental Law Clinic at its disposal, the Waterkeeper Alliance incurs no cost when it files a baseless claim.

“Simply put, awarding litigation fees is the most effective way to discourage the Waterkeeper Alliance from doing more of the same. Undeterred by defeat in this Court, they can simply move on and sue the next farm,” Frerichs said.

Those involved in the lawsuit have essentially admitted that they intend to do just that. In media interviews, Scott Edwards, one of the original Waterkeeper attorneys on the suit, now with Food and Water Watch, has said, “This is a long ongoing battle and it will continue” and “we’ll be taking other steps and mounting other efforts.” In addition, Assateague Coastal Trust Coastkeeper Kathy Phillips said in an interview, “We didn’t win the integrator liability this time around.”

Even the Waterkeeper Alliance’s allies have conceded that awarding legal costs is the appropriate deterrent. A bill, HB 1349, introduced last year before the Maryland House of Delegates, would have required the University of Maryland to reimburse Alan Hudson’s legal fees. The bill was opposed by a coalition of 18 environmental groups (including ACT and other Waterkeeper Alliance members), who stated that “the bill is not only inappropriate but unnecessary” because “the CWA authorizes the court to make an award of legal fees and costs to either party.” Similarly, the State Attorney General’s office opposed the bill, arguing that awarding legal fees was up to the judiciary, not the legislature, and specifically referred to the court’s discretion to award attorney fees to support the bill’s defeat.

“Only by having to pay some portion of the defendants’ legal fees will the Waterkeeper Alliance not see this case as a success – whatever the cost to the courts and to innocent parties forced to endure the ordeal and expense of meritless lawsuits,” Frerichs said.