BERLIN — With a little more than a week left before the opening of the trial in the civil suit against a Berlin farm family over alleged pollution violations dating back to 2009, the federal judge presiding over the case late last week ruled out a pre-trial visit to the site where the infractions allegedly occurred.
In March 2010, the Waterkeeper Alliance, along with the Assateague Coastal Trust and the Assateague Coastkeeper, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract factory farm operation of about 80,000 birds. The suit was filed after sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. Coli in concentrations that exceed state limits. The Waterkeeper Alliance filed suit in federal court accusing the farm of violating the state’s Clean Water Act.
After months of legal posturing by both sides, the trial is finally set to commence on October 9. Earlier this month, attorneys for Perdue and the Hudsons filed a motion seeking a visit to the Berlin farm by Nickerson and all of the participating parties. At the farm, the Court would see for itself the chicken houses, the heavy use pads outside the chicken house doors, the so-called swale between the chicken houses, the manure shed, the elevation and slope of the farm’s terrain, the cow pastures and the farm ditches, according to the motion to view.
“Viewing the Hudson Farm will substantially aid the Court in weighing the evidence relevant to the plaintiff’s theory of liability and the defendants’ defenses,” the motion reads. “These features can only be fully perceived first-hand. The information that a photograph, map or drawing, or any other two-dimensional depiction of a place can convey is necessarily limited. The courts have sensibly recognized that if a thing cannot be brought to the observer, the observer must go to the thing.”
The defendants’ motion suggested an in-person visit to the site would provide the judge with evidence not easily ascertained from pictures, maps and diagrams. The motion further suggested the site visit could be accomplished with little delay, expense or inconvenience as the Hudson Farm is only 126 miles from the downtown Baltimore courthouse where the case will be heard.
However, the plaintiff in the case, the New York-based Waterkeeper Alliance, this week filed a motion in opposition to the site visit, arguing there could be little to be learned from a visit to the site three years after the alleged infractions occurred.
“The defendants have failed to offer any compelling justification for requesting that the Court spend an entire day visiting the Hudson Farm, where the voluminous factual record in this case documents the site and its features and the current conditions of the site are within the defendants’ exclusive control,” the motion in opposition reads. “While features on the Hudson Farm are important to this case, the Court can weigh the evidence presented at trial and make the necessary credibility determinations without observing the site firsthand.”
Last Friday, Nickerson ruled out a pre-trial visit to the Hudson Farm in Berlin and denied the defendants’ motion.
“The Court believes that it was able to gain an accurate understanding of the layout of the Hudson Farm and the conditions of the farm from the extensive material submitted with the summary judgment motions,” Judge William Nickerson’s ruling reads. “With additional material to be submitted at trial, it seems unlikely that a site visit would significantly aid the court.”
In his ruling, Nickerson said he would revisit the issue if it became necessary during trial.
“If, however, towards the close of evidence it becomes apparent additional insight could be gained by a site visit, the court would certainly entertain a renewal of the defendants’ motion,” the ruling reads.