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A few excerpts from the chapters covering the CARE v. Henry Bosma Dairy trial:

Charlie launched the trial with a blistering opening statement. “Your Honor, the defendant has been on notice to cease-and-desist [manure] discharges from the Henry Bosma Dairy since 1978 and was specifically requested by the Department of Ecology [DOE] in 1986 to get a permit, but the defendant returned the application to the DOE and refused to even submit an application for an NPDES [Clean Water Act] permit.”

“Essentially, the defendant thumbed his nose at DOE all these years and he got away with it,” Charlie said, promising to walk the judge through the litany of violations, fines, summonses and angry letters involving Bosma, dating back to the legal statute of limitations.

When it came time for witnesses, Charlie called Harold Porath, a former DOE inspector who was now an expert for Bosma, to the stand. He testified that runoff from a Bosma sprayfield was reaching [irrigation canal] ditch 26.6 and, from there, the Yakima River.

Porath later tried to suggest that some wild birds he saw near Drain 26.6 [irrigation canal] might explain the elevated E. coli levels in the water. Charlie grilled him about how many waterfowl, exactly, he had observed on the day he made his inspection.

“Two, three,” Porath said flatly.

“And they were flying where? Overhead?” Charlie inquired.

“Yes, sir.”

“How high?”

“Fifty feet, a hundred feet.”

It was silly to suggest that a few birds flying at 100 feet could hit a three-foot wide ditch with their droppings. “They must have had pretty good aim, huh?” Charlie joked with the witness. Earlier, on the same line of questioning with another witness, Charlie had asked, “Did you see any cows flying overhead?” He was quickly admonished by Judge Shea: “Mr. Tebbutt, I think you’re having just a little too much fun right now.” Charlie smiled and said, “Yeah, I think so too, Your Honor.”

.     .     .

On June 16, both sides presented their closing arguments.

Charlie began. When Congress passed the Clean Water Act, cases like Bosma were probably “beyond their wildest imaginations,” he said. “Over 20 years of flouting laws, manipulating government agencies, ignoring orders to cease and desist, flatly refusing to even apply for a permit, and calling the agencies some kind of deity simply because they were trying to do what Congress required more than a decade earlier.”

And then there was the “birds did it” defense - “as opposed to the 6,000 cattle,” Charlie said, sporting a mischievous grin. Recalling Harold Porath’s testimony about two wild birds who might have dropped feces into the drain [irrigation canal] from 100 feet aloft, he stated: ”This defense is best summed up by a playground rhyme, Your Honor: ‘Birdie, birdie in the sky, drop a turdie in my eye. I'm no baby, I don't cry, I'm just glad that cows don't fly!’”

The courtroom fell so silent you could hear someone’s watch ticking. The judge stared in bemusement, possibly thinking the same thing that Helen did: “Did Charlie Tebbutt, Esq., just say what I thought he said? In federal court!?” But after that, during the penalty phase [the next phase of trial], every time Bosma’s attorneys raised the bird defense, Judge Shea told them not to mention it again because that argument just wasn’t going to fly.