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Lawsuits such as the one filed last month against an Erath County dairy have been successful in places such as Washington state in curbing water pollution from large animal feeding operations. Litigation recently filed in two other states uses racketeering statutes in an attempt to hold the nation's largest hog producer accountable for pollution.
Charles Markham and Fred B. Parker sued Gerald and Pamela Oosten, owners of G&P Holsteins, in the U.S. District Court in Fort Worth claiming pollution from the dairy has rendered Little Duffau Creek unusable. The creek, near the Duffau community, is a tributary of the Bosque River. The river provides 75 percent of Lake Waco's water. The creek also flows through property owned by Markham and Parker.
The lawsuit alleges pollution has occurred through chronic illegal wastewater discharges by the Oosten farm. State environmental regulators have cited the dairy at least four times for such discharges since 1998, the lawsuit says. The suit also claims that federal and state regulators have not been diligent in trying to prosecute the dairy for violations, therefore a lawsuit is called for under the federal Clean Water Act.
"We think we can prove that for two years (the Oostens) were in violation of federal law," said Stuart Henry of Austin, one of the attorneys representing the plaintiffs.
Neither the Oostens nor Susan Potts, an attorney representing the Texas Association of Dairymen, returned phone calls for the story.
Henry said this was the first lawsuit of its type brought against large dairies in Texas.
"These cases are not real common," he said. "But there are a lot more coming."
Ten dairies were sued in 1997 by a Washington state environmental group known as the Community Association for Restoration of the Environment. Helen Reddout, a Lower Yakima Valley cherry farmer, said the litigation was pursued after her state's environmental agency would "do next to nothing."
A federal court in 1999 found that two dairy operators whom Reddout and her group sued had repeatedly violated the Clean Water Act. In February 2001, a federal judge assessed one of the operators about $600,000 in fines and court fees. The major part of the fines was for manure-contaminated water discharged from the farm that drained into the Yakima River.
The lawsuit against the Oostens comes on the heels of a battle between the city of Waco and the dairy industry over pollution from dairies in the North Bosque River. City officials say the dairies are endangering drinking water from Lake Waco. The city was not directly involved in the suit but did provide testing and analysis of water in Little Duffau Creek for the plaintiffs.
Markham and Parker seek an undetermined amount of compensation for harm to their property. The plaintiffs also want the defendant to clean up the creek. If that is not possible, a civil penalty of $25,000 a day for each day the dairy is out of compliance should be imposed, the lawsuit said. The Washington lawsuits sought similar civil penalties.
Another legal strategy is being followed by a broad-based coalition of about 50 groups which include environmental activists, animal rights organizations, religious groups and other organizations. The self-styled "grassroots" coalition is headed by Robert F. Kennedy Jr., an attorney and president of Water Keeper Alliance. The coalition has taken on Smithfield Farms in lawsuits filed in both North Carolina and Florida. Smithfield, a Virginia corporation, is the nation's largest pork producer.
The lawsuits allege violations of federal and state environmental laws in Smithfield's large North Carolina hog farms. A lawsuit filed in Tampa, Fla., claims the company violated the Racketeer Influenced and Corrupt Organizations Act. That complaint alleges the company's operation is funded by its illegal pollution-based profits. Smithfield disputes those claims stating, just as Texas dairy industry representatives have, that its industry "is one of the most heavily regulated" segments of agriculture.
Kevin Madonna of Chatham, N.Y., is director of Water Keeper's National Litigation Project. He alleges Smithfield will not spend the money needed for pollution control because it eats into their profits.
"There is only one reason those guys are polluting," he said. "It is because they are making tons and tons of money doing it. The money goes in their pockets. The only way to get people to stop breaking the law is to sue them, unfortunately."
Richard L. Smith can be reached at rsmith@wacotrib.com or at 757-5745.
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