Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Transcription

1 Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND WATERKEEPER ALLIANCE, INC., vs. Plaintiff, ALAN AND KRISTIN HUDSON FARM, et al., Defendants. Civil Action No.:1:10-cv WMN DEFENDANT ALAN HUDSON S REPLY TO PLAINTIFF S OPPOSITION TO DEFENDANTS MOTIONS FOR ATTORNEYS FEES AND EXPENSES AND REQUEST FOR HEARING Defendant Alan Hudson, by his attorneys, files this Reply to Plaintiff s Opposition to Defendants Motion for Attorneys Fees and Expenses and Request for Hearing ( Reply Brief ). 1 I. ARGUMENT Mr. Hudson submits this short Reply Brief to respond to one point raised in Plaintiff s Opposition, and to address one issue Plaintiff omits to discuss entirely. A. Dr. Bell Never Had A Plausible Theory Linking Alleged Discharges To The Poultry Operations In its Reply Brief, Plaintiff attempts to insulate itself from findings of bad faith by hiding behind its expert Dr. Bell: 1 Mr. Hudson adopts and incorporates by reference Perdue Farms, Inc. s Reply Memorandum in Support of Attorneys Fees and Other Litigation Expenses.

2 Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 2 of 5 However, Dr. Bell determined that the chicken operation was the primary source of pollution based on the increase in nutrient and bacteria levels between MDE s sample points HF03 and HF02, his analysis of the various areas and fields that would impact each of MDE s sample points, and all of the material detailed above. Dr. Bell s opinions remained constant from February 14, 2011 through his trial testimony. Opposition at p. 4. This statement might have had some force behind it in the context of the present motion had Dr. Bell been involved in Plaintiff s early assessments of the merits of its case. Had Plaintiff engaged Dr. Bell (even as a consulting expert only) prior to the initiation of the litigation, it might now reasonably claim some degree of protection from claims of bad faith and frivolity. But the facts are otherwise. Plaintiff engaged Dr. Bell long after it began its media campaign against poultry integrators, long after its flights over Mr. Hudson s farm, long after it held press conferences accusing Mr. Hudson of polluting waterways with his chicken houses, and even after this Court denied Defendants opening motions to dismiss the case. Plaintiff was not going to walk away from its crusade after the long buildup to bringing this action, which was aimed at changing the way poultry integrators do business. So Plaintiff found an expert who supported its pre-ordained lawsuit. Plaintiff was not led astray by Dr. Bell, or seduced into filing this lawsuit because of what Dr. Bell said. Dr. Bell should provide Plaintiff with no cover for its decision to file and maintain this lawsuit. Likewise, the water sampling conducted by Ms. Phillips and MDE can provide no justification for Plaintiff s actions. As was made amply clear at trial, this case was always aimed at Mr. Hudson s poultry operation, his relationship with Perdue and the way in which poultry integrators do business. But water sampling alone did not and could not link any alleged discharges with Mr. Hudson s poultry operation. Plaintiff, an organization which holds itself out as expert in the fields of environmental science and policy, clearly understood this. Yet, Plaintiff never developed, even after it engaged Dr.

3 Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 3 of 5 Bell, a plausible theory linking the water sample results to chicken manure. This failure is at the heart of Mr. Hudson s motion for fees. B. The CWA s Policies Would Be Met By Granting The Fee Motions As is more fully described in the memoranda in support of the respective defendants fee motions, the policy goal behind the CWA s fee provisions is to blunt the financial risk ordinary citizens face in bringing complex, expensive enforcement actions. Mr. Hudson is not the type of well-funded defendant Congress had in mind when enacting the CWA, nor is Plaintiff the typical cash-strapped citizens group. Plaintiff had airplanes and New York PR firms at its disposal, even before the case began. Plaintiff consists of a national network of local affiliates which advocate on and litigate not only domestic environmental matters, but even international environmental issues. See Finally, Plaintiff had the free resources of the Law School s Environmental Law Clinic at its disposal. Plaintiff does not challenge the disparity in financial resources between itself and Mr. Hudson in its Opposition, nor does it address whether an award of fees to Mr. Hudson would be consistent with CWA policies to alleviate the financial burdens faced by ordinary citizens involved in expensive environmental litigation. If ever there were a case to turn the tables on the award of fees under the CWA, this case is it. Even Plaintiff acknowledged as much when it opposed past legislative efforts to help the Hudsons. II. CONCLUSION For all of the foregoing reasons, Defendant Alan Hudson respectfully requests that this Court grant his Motion for Attorneys Fees and Expenses.

4 Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 4 of 5 Request For Hearing Defendant Alan Hudson hereby requests a hearing on his Motion for Attorneys Fees and Expenses. Respectfully submitted, /s/ George F. Ritchie, Bar No Gordon Feinblatt LLC 233 East Redwood Street Baltimore, Maryland FAX: gritchie@gfrlaw.com Attorney for Defendant Alan Hudson

5 Case 1:10-cv WMN Document 234 Filed 04/05/13 Page 5 of 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 5th day of April 2013, a copy of Defendant Alan Hudson s Reply To Plaintiff s Opposition To Defendants Motions For Attorneys Fees And Expenses And Request For Hearing was filed and served via the Court s ECF system on: Ward B. Coe, III James D. Bragdon Gallagher Evelius & Jones LLP 218 North Charles Street, Suite 400 Baltimore, MD Jane F. Barrett Andrew Keir Environmental Law Clinic University of Maryland School of Law 500 W. Baltimore Street Baltimore, MD Counsel for Plaintiffs Michael Schatzow Thomas M. Lingan M. Rosewin Sweeney VENABLE LLP 750 E. Pratt Street, Suite 900 Baltimore, MD Attorneys for Defendant Perdue Farms Incorporated /s/ George F. Ritchie