Assateague Coastkeeper et al v. Alan & Kristin Hudson Farm et al

Filing 243

MEMORANDUM AND ORDER denying 215 Motion for Attorney Fees; granting 227 Motion to Withdraw Appearance of Scott Edwards ; granting 228 Motion to Withdraw Appearance of Christopher T. Nidel. Signed by Judge William M Nickerson on 8/27/2013. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

WATERKEEPER ALLIANCE, INC.
v.
ALAN HUDSON et al.
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Civil Action No. WMN-10-487

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MEMORANDUM AND ORDER
Before the Court are motions for attorneys’ fees filed by
Defendant Perdue Farms, Inc. (Perdue), ECF Nos. 212, 223, and
Defendant Alan Hudson, ECF Nos. 215, 222.

The motions are fully

briefed and a hearing was held on these motions on June 26,
2013.

Upon review of the briefs submitted by the parties, the

oral argument, and the applicable case law, the Court determines
that the motions should be denied.
This case was brought under the citizen suit provision of
the Clean Water Act (CWA), 33 U.S.C. § 1365.

The Court assumes

the reader’s familiarity with the extensive findings of fact
previously presented by the Court, see ECF No. 211, and that
factual background will not be repeated here in any significant
detail.

Briefly stated, however, Plaintiff alleged that the

poultry operation on Defendant Hudson’s family farm was
responsible for the release of high levels of pollutants into a
tributary of the Pocomoke River.

At all times relevant, Hudson

was using his poultry operation to raise Cornish hens for
Defendant Perdue.
After a ten day bench trial and significant post-trial
briefing, the Court issued its Findings of Fact and Conclusions
of Law on December 20, 2012.

Id.

The Court concluded that,

while alarmingly high levels of fecal coliform, E. coli,
nitrogen, and phosphorous had been discharged from Hudson’s farm
and that at least some of those contaminants would reach the
Pocomoke River, Plaintiff had not met its burden of establishing
that the poultry operation contributed to these discharges.
Instead, the Court found that the only proven source of the
observed discharges was the tons of cow manure associated with
the beef cattle operation that Hudson also conducted on his
farm.

As the result of the way in which Plaintiff elected to

pursue this action, Plaintiff’s CWA claim was restricted to
pollution allegedly caused by the poultry operation.

Therefore,

the Court entered judgment in favor of Defendants.
As the prevailing parties, Defendants have moved for
recovery of the attorneys’ fees and costs expended to defend
this action from March 1, 2012, the date this Court denied cross
motions for summary judgment, through the preparation for and
conduct of trial.

By an order dated January 28, 2013, the Court

bifurcated the issue of Defendants’ entitlement to any fees from
the resolution of the amount of any fees.
2

While the pending

motions are limited to the entitlement issue, the Court is aware
that Defendants collectively seek approximately three million
dollars in attorneys’ fees and costs.
In addressing these motions, the Court must first determine
the standard to be applied to the award of fees to prevailing
defendants in CWA actions.

The CWA provides that "[t]he court,

in issuing any final order in any [citizen suit] . . . , may
award costs of litigation (including reasonable attorney and
expert witness fees) to any prevailing or substantially
prevailing party, whenever the court determines such award is
appropriate.”

33 U.S.C. § 1365(d).

Although this provision

makes no distinction between prevailing plaintiffs and
prevailing defendants, most courts that have reached the issue
have applied different standards based upon the identity of the
prevailing party.

“When a plaintiff prevails, the section is

liberally construed and fees are typically awarded.”

Sierra

Club v. Cripple Creek and Victor Gold Mining Co., 509 F. Supp.
2d 943, 949-50 (D. Colo. 2006) (citing Christiansburg Garment
Co. v. E.E.O.C., 434 U.S. 412, 416-17 (1978) and Browder v. City
of Moab, 427 F.3d 717, 721 (10th Cir. 2005)).

Courts reason

that fees should typically be awarded to a prevailing plaintiff
because “‘the plaintiff is the chosen instrument of Congress to
vindicate a policy that Congress considered of the highest
priority,’ and when the plaintiff prevails, he or she has proven
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that the defendant is a ‘violator of federal law.’”

Id. at 950

(quoting Christiansburg Garment, 434 U.S. at 418).
When a defendant prevails, however, courts look to
different equitable considerations to determine whether fees
should be awarded.

In this context, courts are concerned that

plaintiffs with legitimate, but not airtight, claims might be
discouraged from pursuing such claims if faced with the
potential threat of fee shifting.

Accordingly, most courts that

have reached the issue have applied the same standard to CWA
cases that is used by courts to determine whether fees should be
awarded to prevailing defendants in civil rights cases, i.e.,
the standard announced by the Supreme Court in Christiansburg
Garment.

Under that standard, to obtain the award of fees, a

prevailing defendant must show that the civil action was
“frivolous, unreasonable, or without foundation,” or that the
plaintiff continued to litigate “after it clearly became so.”
Sierra Club, 509 F. Supp. 2d at 950 (citing Christiansburg
Garment, 434 U.S. at 419-20).
As Perdue acknowledges in its briefing, the Supreme Court
has held that fee-shifting provisions in environmental laws
should be applied “in a similar manner” as those of the civil
rights laws.

ECF No. 223 at 7 n.6 (citing Pennsylvania v.

Delaware Valley Citizens’ Council, 478 U.S. 546, 559-60 (1986)
and City of Burlington v. Dague, 505 U.S. 557, 561-62 (1992)).
4

Defendants note, correctly, that these environmental cases from
the Supreme Court addressed fees for prevailing plaintiffs, not
prevailing defendants, and that the Supreme Court has not spoken
directly to the issue of when prevailing defendants should be
awarded fees.

Some circuit courts, however, have addressed fee

awards for prevailing defendants and, those that have, have
generally followed the Christiansburg Garment standard.

See,

e.g., Morris Smith v. Moulton Niguel Water Dist., 234 F.3d 1277,
at *3 (9th Cir. 2000); Razore v. Tulalip Tribes of Washington,
66 F.3d 236, 240 (9th Cir. 1995);

Sierra Club v. City of Little

Rock, 351 F.3d 840, 847 (8th Cir. 2003).1

While the Fourth

Circuit has not directly addressed the issue, it has affirmed a
district court’s application of the Christiansburg Garment
standard to the denial of attorneys’ fees to a prevailing
defendant in a CWA action, “credit[ing] the reasons given by the
district court in reaching its conclusion.”

Deerfield

Plantation Phase II-B Prop. Owners Ass’n, Inc. v. U.S. Army
Corps of Eng’rs 501 F. App’x 268, 275 (4th Cir. 2012).

1

Perdue cites a Fifth Circuit decision, Sierra Club v. Shell Oil
Co., 817 F.2d 1169, 1176 (5th Cir. 1987), for the proposition
that there is no higher standard for the award of fees to
prevailing defendants than to prevailing plaintiffs. In that
decision, The Fifth Circuit simply affirmed the district court’s
award of attorneys’ fees in one sentence upon a finding of no
abuse of discretion without any discussion of the standard
guiding that discretion. Thus, the decision is of little
precedential value.
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Despite the lack of definitive guidance, there is no
question in this Court’s view that the Christiansburg Garment
standard applies to any award of attorneys’ fees under the CWA
and, thus, to be entitled to fees, a prevailing defendant must
show that the action was “frivolous, unreasonable, or without
foundation,” or that the plaintiff continued to litigate “after
it clearly became so.”

Like the fee provision in the CWA, the

fee provision in the civil rights statute interpreted in
Christiansburg Garment makes no distinction between prevailing
plaintiffs and prevailing defendants and yet the Supreme Court
fashioned different standards to apply to the different parties.
This Court finds the reasoning behind that distinction even more
compelling in the context of the CWA, where, unlike the civil
rights actions, the plaintiff in a CWA action seeks no monetary
relief for itself, but only acts to protect the public interest
(or, at least, its perception of the public interest).
While Defendants do not concede the validity of Plaintiff’s
CWA claim at any stage of this action, their primary argument in
favor of the award of fees is that the Court’s March 1, 2012,
Letter Order denying the cross motions for summary judgment, ECF
No. 143, “put Plaintiff on notice both that its claim was
fatally flawed and that the Court could assess fees in favor of
Defendants if Plaintiff proceeded with a meritless case.”
No. 235 at 9.

ECF

The Court’s Letter Order did raise concerns about
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Plaintiff’s shifting positions taken in this litigation and also
noted potential weaknesses in the opinions proffered by
Plaintiff’s expert, Dr. Bruce Bell.

Specifically, the Court

questioned Dr. Bell’s efforts to minimize the contribution of
the cattle operation to the observed discharges while, at the
same time, maximizing the “pathways” by which poultry waste
could leave Hudson’s farm.

The Court also noted that it was

clearly Plaintiff’s desire to impose liability arising, not just
from any CWA violation, but from a violation caused by a poultry
operation associated with a major poultry integrator.
Despite the concerns expressed in the Letter Order
regarding Dr. Bell’s opinions, the Court did not strike Dr. Bell
as an expert witness, finding his opinions were “generally
consistent throughout this litigation.”

ECF No. 143 at 1.

While the Court expressed skepticism of Dr. Bell’s efforts to
minimize the contribution of the cattle operation to the
discharges, it is important to note that, in order to prevail on
its CWA claim, Plaintiff did not need to prove that the poultry
operation was the only source contributing to the discharges
from Hudson’s farm or even that the poultry operation was the
major source of contribution.

Plaintiff only needed to

establish that Hudson’s chickens contributed in some way to the
high levels of pollutants coming off the farm and ultimately
entering the Pocomoke River.

Recognizing that this was all that
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Plaintiff needed to establish, the Court denied Defendants’
motions for summary judgment.
The Court did note in its Letter Order, as Defendants
highlight, that, “it is not unprecedented that attorney’s fees
can be awarded to a prevailing defendant in a CWA citizen suit”
“[s]hould the Court find no violation [of the CWA].”
(citing Cripple Creek, 509 F. Supp. 2d at 951).
noted, such awards are “certainly rare.”

Id.

Id.

But, the Court

Furthermore, just

above the observation about the possible award of fees should
Defendants prevail, the Court suggested what the possible result
might be “[s]hould the Court find a CWA violation,” noting that
certain factors might limit any fine that the Court might
impose.

Id. (citing 33 U.S.C. § 1319(d)).

Thus, although a

fair reading of the Letter Order would have made it clear that
the Court believed that the vast majority of the contaminants
coming off Hudson’s farm were coming from Hudson’s cows, the
Court did not foreclose the possibility that Plaintiff might be
able to prove that some amount, however small in comparison,
came from Hudson’s chicken houses.
In support of their motions for attorneys’ fees, Defendants
also point to language in the Court’s Findings of Fact and
Conclusions of Law that they believe reflect the Court’s view
that Plaintiff’s claims were without foundation.
223 at 14.

See ECF No.

The Court was highly critical of certain aspects of
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this litigation.

The Court opined that it “borders on

indefensible” that Plaintiff did not conduct the straightforward
testing that would have isolated the contribution of
contaminates from the poultry operation from those of the cattle
operation and that it was “somewhat astonishing” that Plaintiff
would explain that failure by suggesting that to do so would
have been too expensive.

ECF No. 211 at 25.

In a similar vein,

after underscoring the important role that CWA citizen suits
play in protecting the nation’s water resources, the Court
expressed its dismay that, in this instance, Plaintiff did not
perform this role “responsibly and effectively.”

ECF No. 211 at

49.
These criticisms, however, were directed not to the merits
of Plaintiff’s claim but to the manner in which Plaintiff went
about attempting to prove those merits, specifically, the lack
of sufficient and appropriate sampling and testing.

The Court

focused on Plaintiff’s failure to take water samples from a
point in Ditch One between the Swale and Ditch 3 that would have
isolated the contribution of the chickens from the contribution
of the cows.

Id. at 24.

The Court also questioned why

Plaintiff did not take the obvious step of sampling the “dust”
emitted from the chicken house exhaust fans.

Id. at 25-26.

While criticizing these failures, the Court acknowledged in its
Findings of Fact and Conclusions of Law that it was certainly
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possible that some of the discharged contaminants came from the
poultry operation and “[i]t is also possible that, if Plaintiff
had done appropriate testing on the Hudson Farm, they could have
found evidence of that discharge.”
original).

Id. at 42 (emphasis in

The Court further opined that it “could readily

envision” finding a violation caused by the poultry operation if
Plaintiff had conducted adequate testing.

Id. at 44.

One is left to ponder why Plaintiff failed to conduct the
testing that, at least in hindsight, seems so obviously
necessary and critical to the proof of its claim.

One

possibility, of course, is that Plaintiff did not sample or test
because it feared that the appropriate testing would disprove
its claim.

Were that the case, the award of fees would be

justified.

Another possibility, however, is that Plaintiff

simply overestimated the strength of its case and saw no need
for additional testing.

The Court believes that this is the

more likely explanation and that this kind of tactical
misjudgment does not support the award of attorneys’ fees.
In addition to concerns about Plaintiff’s failure to
conduct adequate sampling and testing, the Court’s decision on
the merits turned on the relative credibility and persuasiveness
of Plaintiff’s expert, Dr. Bell, and Defendants’ expert, Dr.
Charles Hagedorn.

As mentioned during the closing arguments,

the Court found that both experts “made a sincere effort to
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formulate opinions that each believe to be valid.”
2013 Tr. at 4.

Nov. 30,

The Court found validity in some aspects of

Bell’s testimony.

The Court agreed with Dr. Bell that there was

a clear hydrological connection between the ditches on Hudson’s
farm and the Pocomoke River.

ECF No. 211 at 34.

The Court

discounted some aspects of Dr. Hagedorn’s testimony,
specifically, the level to which the water table must rise
before surface water runoff would occur.

Id. at 31.

While crediting and discrediting to some extent the
testimony of both experts, the Court ultimately found Dr.
Hagedorn’s expertise “more closely aligned” with the most
critical issues and his opinions on those issues to be more
compelling.

Id. at 28.

In opposing the motions for fees,

Plaintiff argues that it could not have foreseen that the Court
would give more weight to Dr. Hagedorn because it was events at
trial, specifically, the cross examination of Dr. Bell and the
introduction by Dr. Hagedorn of “new opinions,” that altered the
comparative weight given to the experts’ testimony.

Defendants

were effective in cross examining Dr. Bell, particularly on his
analysis of the topography of Hudson’s farm.

Id. at 27.

Although the Court does not agree that Dr. Hagedorn’s opinions
were “new,” his presentation at trial made his conclusions
perhaps more compelling than would have been apparent at the

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summary judgment stage.

While not vastly different, Defendants’

case was stronger at trial than at summary judgment.
As a result, we have a judgment that turned, at least in
part, on the Court’s assessment of the credibility of opposing
experts.

To a greater degree, the judgment turned on

Plaintiff’s failure to properly prepare its case by conducting
the necessary sampling.

In this Court’s view, Plaintiff’s claim

was not pursued or litigated as well as it could have been.
That, however, is not the same as concluding that the underlying
claim itself was “frivolous, unreasonable, or without
foundation,” or ever clearly became so.

Thus, the Court

concludes that the award of attorneys’ fees is not warranted in
this instance.
There are a few remaining issues that were discussed at
some length in the parties’ briefing and, while not
determinative of the attorneys’ fees issue, warrant brief
comment.
Defendants are critical of Plaintiff’s predetermined goal
to bring a CWA suit against a poultry farm that was under
contract with a major poultry integrator.
2.

See ECF No. 223 at 1-

There is no denying that this was Plaintiff’s goal.

There

is also no denying, however, that large scale poultry operations
on Maryland’s Eastern Shore have a potential impact on the water
quality of the Chesapeake Bay.

For an environmental group to
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target its efforts on what it perceives as a major source of
pollution is not unusual, nor unreasonable, nor a sign of bad
faith.

If done well, it could function as an effective use of

that organization’s resources.
The Court referred to Plaintiff’s quest to go after a major
poultry integrator in both its March 1, 2012, Letter Order, ECF
No. 143 at 3, and its Findings of Fact and Conclusions of Law,
ECF No. 211 at 6-7, 9-10, 44-46.

These references were made,

not to indicate that there was any impropriety in the strategic
choice to attempt to impose liability on a poultry integrator,
but instead, to comment on Plaintiff’s willingness to make
misrepresentations to the public concerning this litigation and
on what appeared to be Plaintiff’s effort to somehow make Perdue
responsible for Hudson’s cattle.

See id.

Various misrepresentations made by Plaintiff and
Plaintiff’s agents to the press and public are also highlighted
in Defendants’ motions for attorneys’ fees.

Defendants present

transcripts of interviews and other statements wherein Plaintiff
continues to attempt to “spin” the results of these proceedings
to its advantage.

Perhaps most distressing are statements made

by one of Plaintiff’s attorneys, Scott Edwards,2 implying that

2

On the day following the filing of Perdue’s motions reporting
these misstatements, Plaintiff filed a motion to withdraw the
appearance of Mr. Edwards. ECF No. 227. Plaintiff also filed a
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the case was lost because Plaintiff was not given access to
Hudson’s farm, as well as other misrepresentations made by
Edwards regarding the facts and law related to this case.

As

counsel of record, Mr. Edwards should have been aware that
Plaintiff was given access to Hudson’s farm on the two occasions
that it requested access and that Plaintiff never sought
permission to do any further testing.

He is also aware that

access could have readily been ordered by the Court had such a
request been denied by Hudson.
As disconcerting as these extra-judicial public statements
might be, the Court does not view them as grounds to find that
the claim that Plaintiff brought in these proceedings was
frivolous, unreasonable, or without foundation.

While these out

of court statements may serve to diminish Plaintiff’s
credibility with the public and ultimately, its effectiveness as
an advocate for its chosen causes, they are not a basis on which
to award attorneys’ fees.
Defendants raise one additional issue concerning
Plaintiff’s conduct in this litigation - the manner in which
Plaintiff participated in the settlement procedures after the
March 1, 2012, Letter Order was issued.

At the Court’s

suggestion, the parties met with then Magistrate Judge Paul W.

motion to withdraw the appearance of Christopher Nidel.
228. Both motions will be granted.
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ECF No.

Grimm to discuss a possible settlement of this litigation.
Typically, the trial judge would not be aware of positions taken
by the parties in settlement negotiations and a party’s “good
faith” or “bad faith” in settlement should not be considered in
determining if attorneys’ fees are to be awarded.

See Cripple

Creek, 509 F. Supp. 2d at 950 and n.16 (noting that subjective
bad faith is not the determinative factor but might be a
stronger basis for an award of fees if the case was also
frivolous, unreasonable, or groundless, citing Christiansburg
Garment, 434 U.S. at 422).
Here, however, Plaintiff opened the door to some
examination of its settlement conduct by asserting in its
opposition to Defendants’ motions that, after the issuance of
the Letter Order, it made a “good faith” effort to resolve this
matter without the need for a trial.

Defendants challenged that

representation of good faith and the Court requested, and the
parties submitted, copies of the demands and counter-demands
exchanged between the parties and submitted to Judge Grimm.

At

oral argument, the parties also discussed the course of the
settlement discussions.
A review of the submitted documents indicates that
Plaintiff was not seriously working to settle this matter.
Plaintiff continued to press for more relief than it would or
could have obtained from a decision in its favor on the merits.
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The Court notes that, in the course of negotiations, Perdue
proposed a joint contribution with Plaintiff, albeit modest, to
an educational institution to study an agriculture-related
environmental issue.

It is disappointing that no agreement that

could have actually benefitted the Chesapeake Bay came from
these negotiations.

The Court also finds it ironic that one

item of relief sought by Plaintiff in its settlement demands was
the re-start of the Perdue-EPA Clean Waters Initiative, a
program that appears to have been discontinued as a result of
this litigation and Plaintiff’s efforts to use that initiative
to impose liability on Perdue.
It is most unfortunate that so much time and so many
resources were expended on this action that accomplished so
little.3

Nevertheless, the Court cannot find that Defendants’

request for the award of attorneys’ fees satisfies the
applicable standard for the award of such fees.
Accordingly, IT IS this 27th day of August, 2013, by the
United States District Court for the District of Maryland,
ORDERED:
1) That the Motion to Withdraw Appearance of Scott Edwards
for Plaintiff, ECF No. 227, is GRANTED;

3

There is perhaps some solace in the fact that the party most
emotionally impacted by this litigation, Mr. Hudson, at least
had his litigation expenses covered from other sources.
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2) That the Motion to Withdraw Appearance of Christopher
Nidel for Plaintiff, ECF No. 228, is GRANTED;
3) That Defendant Perdue Farms, Inc.’s Motion for
Attorneys’ Fees, ECF No. 212, is DENIED;
4) That Defendant Alan Hudson’s Motion for Attorneys’ Fees,
ECF No. 215, is DENIED; and
5) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

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