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Local Farmers, Environmentalists Square Off In Court

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Tom Jones is driving through chicken country near Salisbury, Md. Across a green and gold field of soybeans, are a dozen long, white hanger-looking buildings.

"Up to 200,000 or 300,000 birds can be raised there in that one operation," says Jones, a retired professor of biology and president of the board of directors of the Assateague Coastal Trust. "It's a chicken operation because it's very long building that's only one story."

The building is plain, with an old slanted roof. Inside, there is a concrete slab and feeders running up and down the room. "Water and feed is brought to the chicks on the floor, and they stay in that coop."

Jones says that across the Delmarva Peninsula, manure from the chickens is polluting waterways with nitrogen and phosphorous. He gets out by the Pocomoke River, which the state of Maryland classifies as impaired.

"What you see is a lot of brownish looking water," he says. "There could be times of the year when you come by here and it's a solid green, and right back there there's a little pond that's loaded with duckweed. The entire surface of that pond is choked with it, reason being there's so much fertilizer in the water."

His group and the Waterkeeper Alliance filed a lawsuit against one farm in particular two years ago: The Hudson Family Farm run by Alan and Kristin Hudson of Berlin, Md.

"We sampled above and below, and above the property did not have any of these excessive amounts of nutrients, but below, it did."

The Waterkeeper Alliance has since taken over the suit.

Uncovering chicken poop

In a community room 45 minutes away in Georgetown, Dela., Andrew McLean is quietly fuming. McLean is head of the Delmarva PoultryIndustry, and is a chicken farmer himself.

"Basically the genesis of this whole lawsuit was a false pretense," McLean says.

To understand what he's talking about, one has to go back 3 years.

Tom Jones' group, The Assateague Coastal Trust, flew a plane over the Hudson Farm and spotted a giant pile of what they thought was chicken manure, uncovered and near a drainage ditch, and got ready to sue. But actually, it wasn't chicken litter at all. It was biosolids from Ocean City.

Biosolids is human manure, routinely used as fertilizer, and is not considered the same as chicken litter. The Maryland Department of the Environment was called in, because whatever type of manure it is, it's not allowed to go exposed to the elements that might wash it into a stream.

The Hudson Farm had to move the pile and cover it, and that was that. The Department of the Environment didn't show that that the pile caused any contamination, just that it could have. That wasn't enough even to collect a fine, so the environmentalists pressed their own case.

"It'd be like you getting sued for you having a speeding ticket after you've been to court and paid your fine, and then somebody sues you because you were driving too fast and using too much gasoline," says McLean. "It's brought the farming community here on Delmarva more together than any issue that I've ever seen."

Legal experts say it's extremely difficult to prove whether a farm is polluting because it's not like a factory or sewage plant where there's a simple exhaust pipe you can test. McLean and other farmers are still very fearful. They've raised $200,000 to cover legal fees for Hudson Farm.

"Every creek on Delmarva because we are flat and the water does not move quickly winds up being high in bacteria just from normal detritus of things growing near it," says McLean.

The Waterkeeper Alliance argues that dust and feathers from ventilation fans and boots are spreading pollution. The judge in the case wrote this past spring that if he accepted all the arguments of the environmental groups, every poultry farm on the peninsula would probably be in violation of the Clean Water Act. A more likely implication of the case may not be whether the Hudson Farm polluted, but who can be held responsible for such pollution. Pamela Marks is with the law firm Beveridge & Diamond, which focuses on environmental law.

"As a big picture, I think this case could possibly speak to the extent to which a poultry integrator might bear some responsibility for environmental compliance at farms they contract with," says Marks.

The environmental groups are going after Perdue, the giant poultry producer. They want to hold Perdue responsible for the alleged pollution of one of its contractors. That's because large poultry giants like Perdue supply the grain and sometimes the chicks to individual farmers, and then come by to pick up the chickens when they're grown.

An attempt several years ago by the Maryland Legislature to make industrial processors responsible for the practices of their contractors failed. This case is an effort to tie the two together through the courts.

Alison Proust with the Chesapeake Bay Foundation says that will help clean up the waterways on a larger scale.

"From an environmental perspective, the more people held accountable for farm operations, construction operations, any increased level of accountability is going to help us realize our cleanup goals," says Proust. "These small farm operations are going to have someone else at the table with them contributing financially, taking on some of the burden."

But that question may never be resolved in this case. The judge has expressed a skepticism toward the arguments laid out by the environmental groups, and in what may be a thinly veiled warning, has pointed out it is well within his rights to make them pay for the farm's legal fees if they lose.

[Music: "Above the Branch" by Calexico from Tool Box]


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