Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

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1 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 1 of 8 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 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM IN SUPPORT Defendant Alan Hudson, by his attorneys, hereby submits this Reply to Plaintiff s Proposed Findings of Fact and Conclusions of Law and Memorandum in Support. 1 INTRODUCTION In its March 1, 2012 Letter Order and Opinion ( Opinion ), this Court expressed concerns that if it were to credit Plaintiff s liability theories, the Court would be hard-pressed to discern how every chicken production operation on the Eastern Shore is not in violation of the Clean Water Act (CWA). Opinion at 2 (emphasis added). With the filing of Plaintiff s latest briefs, the proverbial cat is out of the bag and clawing wildly at the Court s concerns. In a section of its Proposed Findings of Fact entitled Continuing Violation, Plaintiff argues this Court should find that there is a continuing likelihood of recurring discharges from the Hudson Farm because 1) the farm still has two poultry houses; 2) Mr. Hudson still grows chickens inside those poultry houses; 3) the poultry houses still have 1 Mr. Hudson adopts the Trial Brief in Response to Plaintiff's Memorandum in Support of its Proposed Findings of Fact and Conclusions of Law filed by Perdue Farms, Inc.

2 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 2 of 8 fans; 4) the chicken houses still have heavy use pads; 5) Mr. Hudson continues to windrow poultry litter and walk in and out of the houses on a daily basis; 6) the poultry houses still have a swale and a pipe in the swale; and 7) Ditch 1 still flows into the Pocomoke. See Plaintiff s Proposed Findings of Fact at 85. This simple-minded syllogism unsupported by the evidence in this case - would render virtually every chicken production operation on the Eastern Shore of Maryland in immediate violation of the CWA as a matter of law. Virtually every poultry farm on the Eastern Shore has all of the features Plaintiff has decided ipse dixit lead inexorably to CWA violations. It would have been logical to expect Plaintiff to attempt to assuage the Court s fears of some sweeping, industry-killing relief at trial. It would have been logical to expect Plaintiff to disguise a radical agenda behind the trappings of ordinary proof. But, if this trial has proven anything, it is that logic had little to do with Plaintiff s decision to pursue this case. Plaintiff s latest filing only makes painfully explicit what has been Plaintiff s agenda all along - the embrace of radical policy goals at the expense of common sense. Beyond the absurd section described above, Plaintiff s filings are riddled with distortions of the record. Plaintiff also directs shrill indignation at Mr. Hudson for issues that bear no relevance to Plaintiff s substantial burden of proof. Plaintiff apparently hopes that this Court will find character attacks an adequate substitute for the evidence Plaintiff sorely lacks. The character issues in this case, however, speak for themselves, most loudly in the cross examination testimony of Kathy Phillips. Plaintiff is, by its own admission, an organization run by lawyers to file lawsuits. The Hudson Farm is a family-owned, century old farm, run by Alan Hudson, with a little help from his elderly father. Those facts alone should answer any character questions the Court has

3 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 3 of 8 Mr. Hudson addresses the remaining rebuttal points below. I. There Was No Notice To The Farm About Problems With Poultry Houses Plaintiff devotes portions of its briefs to documents issued by the Environmental Protection Agency that refer to emissions from poultry house fans. As an initial matter, and as is discussed in Perdue s post-trial briefs, Plaintiff has utterly failed to demonstrate a connection between the fans on the poultry houses and any alleged discharges from the farm. It also cannot be disputed that the evidence in this case is that Mr. Hudson was never given any warnings or any other information alerting him to the potential for discharges from the fans on the poultry houses. See Hudson Proposed Findings of Fact at 27. The same is true with respect to his shoes, trekking in and out of the houses, and the swale. Id. This lack of notice, in the context of elaborate federal and state environmental and agricultural regulatory schemes, speaks volumes about the credibility of Plaintiff s claims. It also demonstrates as well as any scientific fact why Mr. Hudson should not be found liable for a discharge under the CWA. II. The MACS Forms Are Not Probative Of A Discharge From The Farm Lacking credible evidence of a discharge from the poultry houses, Plaintiff argues that the boilerplate MACS program documents Mr. Hudson signed are meaningful proof in the case. As Mr. Hudson explained at trial, these documents are what you need to sign to get the [MACs] money. See Hudson Testimony October 18, 2012, a.m. at p. 8. Plaintiff established nothing with regard to the MACs documents beyond the fact that a government agency required Mr. Hudson to sign them (and presumably any other farmer interested in federal cost share money) in order to construct the pads. Plaintiff could have, but did not call any witness involved in the program to support its claim that the forms have any meaning beyond a bureaucratic justification - 3 -

4 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 4 of 8 for expenditure of funds. The Court should accord the same weight to this evidence that Plaintiff s trial plan did. 2 III. Plaintiff Mischaracterizes The Evidence Regarding The Farm s Permit Status Plaintiff repeatedly insists in its filings that Mr. Hudson did not have an NDPES Permit, and was not covered by the Maryland General Discharge Permit for CAFOs, blindly citing a letter it received from MDE to the effect that there were no issued permits to the Hudson Farm in its records. Inexplicably, Plaintiff ignores the correspondence from the same agency agreeing to legally bridge the gap between the effective date of the permit to the earliest date that you are able to obtain a certified CNM. See Hudson Proposed Findings of Fact at 34. In fact, Mr. Hudson took the steps requested by MDE in response to the bridge-the-gap letter, including executing a General Compliance Schedule, a CAFO Supplementary Information form, and CNMP status forms. Id. at s It is only literally true, as Plaintiff argues, that the Compliance Schedule is not a permit. These forms nevertheless indicate that MDE deemed the farm to be covered by the General Permit. If Plaintiff believed otherwise, Plaintiff s counsel could have cross-examined Gary Kelman, the head of MDE, on this point. Plaintiff s decision not to do so is telling. Plaintiff also argues that [t]he Compliance Schedule does not limit Alan Hudson s liability and that nothing in the agreement limits the liability... with respect to enforcement actions brought by EPA or citizens. See Plaintiff s Memorandum in Support at pps But neither have Plaintiffs, who bear the burdens of proof and persuasion, demonstrated that it is 2 Plaintiff also wags its finger at Mr. Hudson for failing in several years to have an NMP and for incorrectly reporting his NMP status. Mr. Hudson, however, detailed at trial the difficulty he had in even getting help with NMP plans from the state. See Hudson Testimony October 18, 2012 a.m. at pps The relevant agencies were certainly aware of the status of these NMPs and chose not to pursue any administrative action against Mr. Hudson. In any event, Plaintiff s attempts to scold Mr. Hudson are completely irrelevant to the issues before the Court. Like much of Plaintiff s proof, Plaintiff hopes this piece of grandstanding will hide the paucity of real evidence

5 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 5 of 8 allowed to bring such an action where a Compliance Schedule is in place. It simply would be wrong to allow private citizens to punish Mr. Hudson for the state s inability to properly run its regulatory scheme. Mr. Hudson testified extensively about his efforts to obtain a CNMP, which went unaided by the state until 2011, well after this lawsuit was filed. Hudson Proposed Findings of Fact at s Even after Mr. Hudson finished taking all steps required of him to obtain the permit Plaintiff has accused him of not having, Plaintiff sought to block the MDE approval process by filing baseless objections in the hope that MDE would not issue the permit before this Court s ruling. See Phillips Testimony October 10, 2012 p.m. at pps Given that backdrop, it is the height of hypocrisy for Plaintiff to now accuse Mr. Hudson of manipulating the drafting of his CNMP to support a litigation strategy. Plaintiff has persistently wielded the regulatory process as a litigation bludgeon, both in this proceeding and elsewhere. How can Alan Hudson possibly be criticized for consulting with counsel in regard to his CNMP? To do otherwise would have been foolish. What Plaintiff cannot stomach is the simple truth that the very regulatory agencies charged with oversight over environmental and agricultural issues MDE and MDA - do not believe that any modifications to Mr. Hudson s poultry operation are necessary. Neither agency has required changes to the fans, or Mr. Hudson s shoes, or his walking in and out of the houses. Plaintiff has not given this Court any reason to do otherwise

6 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 6 of 8 IV. No Civil Penalties Are Warranted Even if this Court were find that there had been a discharge from the farm, which Mr. Hudson denies, there is no reason to issue any civil penalty in this case. Section 309(d) of the CWA provides that a Court must take into account in determining the amount of a fine the following factors: 1) the seriousness of the violation(s); 2) the economic benefit (if any) resulting from the violation; 3) any history of such violations; 4) any good-faith efforts to comply with the applicable requirements; 5) the economic impact of the penalty on the violator; and 6) any such other matters as justice may require. Each of these factors militates against the issuance of a fine. First, if the Hudson Farm has violated the CWA, so has virtually every poultry operation on the Eastern Shore. And yet, no government agency has taken any action against these alleged violators. The lack of agency action is, at the very least, a clear indication of the de minimus nature of any purported violation. Likewise, there is no unique economic benefit to Mr. Hudson for operating his poultry farm in the manner he does. He has certainly not gained any advantage over his competition by simply doing what they do. There is no history of violations on the farm, and Mr. Hudson has made every reasonable attempt to obtain permits where necessary. Plaintiff itself currently stands as the sole remaining obstacle to issuance of the CNMP. Moreover, as was made amply clear at trial, because Plaintiff s Notice of Intent To Sue made no mention at all of the discharge theories Plaintiff pursued at trial, there was nothing Mr. Hudson could have done to avoid this litigation. The economic impact of any civil penalty on the Hudson family would be devastating, and completely out of proportion to any alleged discharge. Mr. Hudson is a family farmer with limited resources, who owes a substantial amount of money still toward the poultry houses that - 6 -

7 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 7 of 8 help him earn a living. He does nothing differently on his farm than other poultry farmers in the state. In its previous Opinion, this Court noted that it would not be unprecedented for the Court to award a defendant that prevails or substantially prevails in a private citizen CWA suit its attorneys fees. If ever there were a case which called out for such an award, this case is it. While Mr. Hudson would expect to brief this issue more fully at a later stage in the litigation should he prevail against Plaintiff s claims, Plaintiff s unsound motives and unscrupulous pursuit of this litigation warrant such an outcome. CONCLUSION Accordingly, Defendant Alan Hudson respectfully requests that this Court enter judgment in his favor against Plaintiff s claims, and award him his fees and costs incurred in this litigation in an amount to be determined by the Court at a future date. 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 - 7 -

8 Case 1:10-cv WMN Document 205 Filed 11/21/12 Page 8 of 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of November 2012, a copy of Defendant Alan Hudson s Reply to Plaintiff s Proposed Findings of Fact and Conclusions of Law and Memorandum in Support was filed and served via the Court s ECF system on: Jane F. Barrett, Director Christine M. Myers, Fellow Environmental Law Clinic University of Maryland School of Law 500 W. Baltimore Street Baltimore, MD Chris Nidel Nidel Law, P.L.L.C th Street, N.W. Washington, D.C 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 Hugh Cropper, IV, Esquire Cowdrey Thompson P.A Stephen Decatur Highway, D-2 P. O. Box 535 Ocean City, MD /s/ George F. Ritchie - 8 -