Sunday, March 4, 2012

Federal Judge Rebukes Waterkeepers and UM Environmental Law Clinic

A federal judge called part of the testimony of the WaterKeeper Alliance’s lawsuit against Alan and Kristin Hudson “disturbing” and rebuked the University of Maryland Environmental Law Clinic, which is assisting the plaintiffs.

In a four-page decision denying summary judgement U.S. District Court Judge William M. Nickerson wrote:

As counsel might detect, there are elements of this litigation that the Court finds disturbing. Particularly from the deposition testimony of former Plaintiff Kathlyn Phillips and the documents referenced in that deposition, it seems clear that the original Plaintiffs in this action were looking for an opportunity to bring a citizen suit under the CWA against some chicken production operation under contract with a major poultry integrator. When Phillips discovered a large pile on the Hudson Farm that she believed to be chicken litter, she concluded that she had found her “BAD APPLE.” After the pile proved to be something other than chicken litter, Phillips continued to represent, apparently without any evidence, that the pile was tainted with chicken manure. Plaintiff’s case has now gone from a large pile of uncovered chicken manure to small amounts of airborne litter from the exhaust fans, trace amounts brought out on shoes and tires, and a dustpan of litter left on the heavy use pads.

Nickerson also warned the Waterkeeper Alliance that should the case continue to trial they in fact, may be liable to pay attorney fees should the Hudsons prevail.

Should the Court find no violation, it is noted that the statute permits attorney’s fees to be awarded to “any prevailing or substantially prevailing party…While certainly rare, it is not unprecedented that attorney’s fees can be awarded to a prevailing defendant in a CWA [Clean Water Act] citizen suit.

In regard to the University of Maryland Environmental Law Clinic, Nickerson wrote

Finally, to the extent that this litigation is intended to be a learning experience for the students from the University of Maryland clinic, I feel obliged to make a comment regarding the briefing submitted on behalf of Plaintiff…Submitting briefs near the maximum page limit permitted under the Local Rules but with 767 single-spaced, small-fonted footnotes not only circumvents the spirit if not the letter of the Local Rules, but also makes for less than compelling advocacy. While this style might be appropriate for legal journals that few attempt to read, it is not helpful in the context of litigation.

The trial is set to begin April 16.

Click here to help the Hudsons raise money for their defense.

How the Maryland Environmental Law Clinic acted as unregistered taxpayer-funded lobbyists.

How the Baltimore Sun editorial board’s refuses to admit what the clinic really is.

UPDATE: The Baltimore Sun completely misses the real news in Nickerson's decision.


Judge Nickerson’s decision

Hudson Case Order Denying Motions

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