week denied an attempt by a Berlin
farm family and Perdue to recover
roughly $3 million in attorney fees
spent on successfully defending
them against an alleged Clean Wa-
ter Act violation.
the case did not appear to be frivo-
lous and the plaintiff might have
even prevailed if it had handled the
case more adeptly. From the begin-
ning, the Waterkeeper Alliance fo-
cused on the possible discharge of
pollutants from the poultry opera-
tion, while ignoring or disregarding
the potential contaminants from the
farm's cattle operation.
more importantly did the appropri-
ate testing and sampling to prove
the contaminants came from the
poultry operation, they might have
prevailed in the case, according to
the judge.
action, the plaintiff's Clean Water
Act claim was restricted to pollution
allegedly caused by the poultry op-
eration," Nickerson's opinion reads.
"Therefore, the court entered judg-
ment in favor of the defendants."
Coastal Trust and the Assateague
Coastkeeper, filed suit in U.S. Dis-
trict Court against Perdue and Ber-
lin's Hudson Farm, a contract facto-
ry farm operation of about 80,000
birds.
allegedly revealed high levels of
harmful fecal coliform and E. coli in
concentrations that exceed state
limits in violation of the Clean Water
Act.
days of testimony during which ex-
perts on both sides testified on the
"While criticizing these failures, the
court acknowledged that is was cer-
tainly possible that some of the dis-
charged contaminants came from
the poultry operation and it is also
possible that if the plaintiff had done
the appropriate testing on the
Hudson farm, they could have found
evidence of that discharge."
failed to conduct the testing.
that, at least in hindsight, seems so
obviously necessary and critical to
the proof of its claim," the opinion
reads. "One possibility, of course, is
that the 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. An-
other possibility, however, is that the
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 attorney fees."
great expense and an enormous
amount of time for all parties could
have provided great public benefit,
but was essentially all for naught in
the end.
were expended on this action that
accomplished so little," the opinion
reads. "Nonetheless, the court can-
not find that the defendants' request
for the award of attorney fees satis-
fies the applicable standard for the
award of such fees."
due and the Hudsons, he did grant
the poultry company some relief.
Last week, the court awarded Pe-
rdue over $28,000 in fees it spent
on deposing various witnesses and
on certain presentations and other
resources it used to defend the
case.
ber, Nickerson ruled in favor of the
defendants Perdue and Alan Hud-
son, opining the Waterkeeper Alli-
ance was not successful in proving
a Clean Water Act violation.
ward legal fees to plaintiffs in Clean
Water Act cases, or similar cases
from which a public benefit can be
derived, because the prospect of
millions in legal fees hanging over
their heads could be a deterrent for
bringing the cases to court in the
first place.
but not airtight, claims might be dis-
couraged from pursuing such
claims if faced with the potential
threat of fee shifting," the opinion
reads. "Under that standard, to ob-
tain 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."
not prevail in the original case large-
ly because it failed to do enough
testing to link the contaminants to
the farm's poultry operation.
opinion reads. "The court opined that
it borders on indefensible that the
plaintiff did not conduct the straight-
forward testing that would have iso-
lated the contribution of contami-
nates from the poultry operation from
those of the cattle operation and that
it was somewhat astonishing that the
plaintiff would explain that failure by
suggesting that do so would have
been too expensive."
could have swung the case in the
plaintiff's favor.
plaintiff's claim, but to the manner in
which the plaintiff went about at-
tempting to prove those merits, spe-
cifically the lack of sufficient and ap-
bery and carjacking charges last
weekend after threatening a taxi
cab driver with a knife and taking his
vehicle before eventually being
caught by police in the ocean.
area of 118th Street and Assawo-
man Drive for a reported carjacking
incident. The unidentified cab driver
told police he picked up a fare, later
identified as Ian Edward Keim, 36,
of Neville, Pa., at 49th Street.
following him.
ed Carousel Hotel during the
height of a weekend night.A
surf fisherman on the beach
observed Keim run into the
ocean and directed police to
his location.
been charged with armed robbery
and armed carjacking. He was tak-
en before a District Court Commis-
sioner and is being held on a
$100,000 bond.
and threatened the driver with it.
to get out. Keim then got be-
hind the wheel of the cab and
started driving north on Coas-
tal Highway.
ed up the cab driver in their
vehicle and followed Keim
north on Coastal Highway.
an Drive and fled on foot toward the
beach.
dents and briefed them on a wide
variety of topics as they begin
their college careers. The speak-
ers discussed community expec-
tations and the role of the State's
Attorney's Office in Wicomico
County and also prevented a Top
10 list of tips to keep SU students
safe and out of trouble.
a DUI or DWI, a discussion on
drug laws and drug laws and drug
prosecutions, date rape and sexu-
al assault prevention tips and
police-student relations. Maciarel-
lo also encouraged the students
to record the serial numbers of
their valuables, especially bikes
and video game consoles.
ated this opportunity to welcome
the students," said Maciarello.
"Essentially, we wanted the stu-
dents to understand our commu-
nity values and expectations from
day one while also giving them
some tips to make sure they are
safe on and off campus."
(OCDC) will recognize the re-
sort's Boardwalk maintenance
crews for a job well done over
the summer season at noon on
Labor Day, Monday, Sept. 3.
the efforts of the Public Works
crew, which will take place at the
Boardwalk Arch at North Divi-
sion Street. The Boardwalk em-
ployees, who are responsible for
everything from sweeping and
grooming the sand and empty-
ing the trash cans both on the
Boardwalk and in the downtown
area to ensuring everything's
working properly in the comfort
stations, will be presented gift
bags provided by Boardwalk
merchants, hoteliers and restau-
rateurs, which includes many
OCDC members.
for their hard work in keeping
Ocean City's downtown district
and award-winning beach and
Boardwalk clean throughout the
season.
of our Boardwalk employees,"
said Vicki Barrett, chair of the
OCDC's Boardwalk Committee.
"Most of their work in unseen by
our residents and visitors but it
is noticed by the businesses that
depend on a clean beach and
Boardwalk for a successful sum-
mer each year."
walk Employee Appreciation
ceremony. Following the cere-
mony, the employees will then
be treated to Tony's Pizza.