Talevich v. Voss
| Decision Date | 10 April 1990 |
| Docket Number | No. SA CV 90-92 AHS (RWRx).,SA CV 90-92 AHS (RWRx). |
| Citation | 734 F. Supp. 425 |
| Parties | David TALEVICH and Samuel Edward Dorgan, on their own behalf and on behalf of all those similarly situated, Plaintiffs, v. Henry J. VOSS, Director, California Department of Food and Agriculture, in his official capacity, Defendant. |
| Court | U.S. District Court — Central District of California |
Robert J. Cohen, Crystal C. Sims and Harry W. Simon, Legal Aid Soc. of Orange County, Santa Ana, Cal., for plaintiffs.
Charles W. Getz, IV, Deputy Atty. Gen., San Francisco, Cal., for defendant.
ORDER DENYING PRELIMINARY INJUNCTION
On January 25, February 15, and March 8, 1990, the State of California sprayed Malathion insecticide from helicopters over portions of Garden Grove and other Orange County cities. On February 13, 1990, plaintiffs filed a complaint for injunctive relief and sought an immediate restraining order. After a brief hearing, the Court denied their application, questioning the Court's jurisdiction as to the relief prayed for under the Eleventh Amendment to the Federal Constitution.
At a hearing on March 6, 1990 on the Order to Show Cause why a Preliminary Injunction should not issue, the Court concluded that injunctive relief was not beyond its jurisdiction, but found that plaintiffs had not demonstrated a constitutional deprivation. By this Order, the Court denies the Preliminary Injunction and directs entry in part of the Findings of Fact and Conclusions of Law proposed by defendant.
The Mediterranean fruitfly (the "Medfly") is a pest not native to California, currently infesting approximately 372 square miles of Los Angeles and Orange Counties. The pest poses a severe threat to the economy and welfare of the State of California and can infest over 200 varieties of fruit. California and the County of Orange have declared states of emergency under California law as a result of this infestation, as has the U.S. Department of Agriculture. Getz Declaration, pp. 42-43. The State is currently engaged in an Emergency Eradication Project, pursuant to Cal.Food & Agric.Code §§ 5761-5763, under the authority of the Governor and the State Emergency Services Act in an attempt to eliminate the Medfly infestation. Complaint, Exhibit 2, p. 16.
The pesticide Malathion has been approved by the Environmental Protection Agency ("EPA") for use in the declared emergency in California. The authorization is in the form of a special quarantine exemption for emergency conditions to control the introduction or spread of a pest new to an area, under Section 18 of Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136p; 40 C.F.R. § 166.2(b). Complaint, Exhibit 3. The exemption authorizes applications of a maximum of 2.8 ounces of Malathion per acre mixed with a maximum of 9.6 ounces of Staley's Protein bait or similar bait material, and allows application by ground spray equipment or by aircraft in agricultural and urban areas.
The California Department of Food and Agriculture ("CDFA") convened a Science Advisory Panel made up of recognized experts on the Medfly to advise Voss, director of the CDFA, and the CDFA on the feasibility of eradicating the Medfly, as well as the best methods to accomplish eradication. The Science Advisory Panel reported that eradication is feasible, and recommended two methods to be used for eradication: (1) 1 to 3 aerial applications of the Malathion bait followed by massive releases of 100 sterile Medflies to every 1 wild male Medfly found in traps; or (2) repeated applications of Malathion bait. Getz Declaration, Siddiqui Declaration, p. 23.
The Science Advisory Panel recommended limited applications combined with the release of sterile Medflies. That approach appears to be the State's preference as well. Getz Declaration, Siddiqui Declaration, p. 23. However, the State has been unable to procure an adequate source of high quality sterile Medflies. Id. In December 1989, the Science Advisory Panel recommended that new infestations be treated by repeated aerial applications. The State has therefore undertaken repeated aerial applications. Complaint, Exhibit 2, p. 16.
The State, through the CDFA, is aerially applying a Malathion bait consisting of approximately 2.8 ounces of Malathion mixed with 9.6 ounces of Staley's Protein bait over infested areas of Los Angeles and Orange County. The applications in Orange County commenced on January 25, 1990 and are scheduled to be repeated on a 21-day interval until the Medfly has been eradicated. The Malathion bait is applied during the night from low-flying helicopters. The bait material is a sticky substance in droplet form which attracts the Medfly. When the Medfly ingests the bait, it ingests the pesticide and is killed. California has devised a procedure to be followed in the event a challenge to the spraying is pursued in the courts. Cal.Civ.Pro. Code § 1085.5 and Cal.Food & Agric.Code §§ 5051 et seq.
The estimated cost of the eradication program in Los Angeles, Orange and San Bernardino Counties is approximately $27 million. However, the estimated cost of the potential damage of a Medfly infestation is $200 million per year. Getz Declaration, Siddiqui Declaration, p. 23.
The EPA's special quarantine exemption indicates that prior to the initiation of the program, notification should be made through public media, and individual property owners should be contacted and advised of the treatment and appropriate precautions. Complaint, Exhibit 3, p. 21. Notice of the initial aerial application was provided to each residence in the spray area, local motels, and was posted in Pioneer Park in the City of Garden Grove, a place where the homeless are known to congregate. Getz Declaration, Siddiqui Declaration, p. 25; Zadig Declaration, p. 3. Approximately 122,200 notifications were distributed for the January 20, 1990 spraying. Getz Declaration, Henry Declaration, p. 18.
The notice states that Malathion poses no danger and that its toxicity is approximately the same as laundry detergent. Complaint, Exhibit 1. It further states that there is no need to leave the area during a spray, but that, if convenient, people might prefer to stay indoors in order to avoid any spotting of apparel. Id. The notice recommends normal washing with soap and water if the bait mixture gets on clothing. Id.
Plaintiffs claim they are persons without homes who were located in the Northwestern portion of the City of Garden Grove, County of Orange, on the night of January 25, 1990. Starting at 9:00 p.m., helicopters aerially applied the Malathion bait pursuant to the Emergency Eradication Project.
Plaintiffs allege that immediately subsequent to the spraying, they and other persons in the vicinity exposed to the spray experienced flu-like symptoms, including chills, nausea, vomiting, diarrhea, fatigue, loss of appetite, watering eyes, and shortness of breath. Declarations in Support, Exhibits 1, 2, 4-13, 16. These are said to be symptoms consistent with Malathion poisoning. Declarations in Support, Exhibit 17. Many of the homeless and others admit to seeing the notice of the spraying posted in Pioneer Park or in other locations. However, for various reasons, they went outside during the spray. Declarations of Support, Exhibits 1, 4-6, 10, 13.
Many homeless individuals submitted declarations to the effect that their bedding and clothes had a "sticky goopy" substance on them as a result of the Malathion bait. Declarations in Support, Exhibits 11, 13-15. They allege that it was difficult to get a change of clothes or bedding to replace what was soiled by the Malathion bait, and that they were not able to wash their bedding or change their clothes until some days after the spray. Id.
Plaintiffs suffer a wide variety of adverse conditions as a result of their homelessness. It happens that the current program of spraying of Malathion adds to their many problems. While residents may stay inside their homes during the aerial applications, the homeless have a much greater chance of coming into physical contact with the spray. In addition, they may be exposed to and breathe the spray residues overnight if they sleep in the street.
Residents in general have better access to the news media to receive notice of the date and time of an intended spraying. While several declarants who support the application for injunction knew of the intended spraying, it is no doubt true that the first notice many homeless individuals receive is the sound of the low-flying helicopters and perhaps the Malathion spray droplets falling on them. Furthermore, the homeless often have no place to wash themselves or their clothes with soap and water, and may not be able to change their clothes for some period of time after an application. Accordingly, the sticky bait material may remain on their clothing for days before they get a chance to change their clothes or wash.
State Senator Marian Bergeson drew the problem of the homeless to the attention of Governor Deukmejian in a letter dated January 19, 1990. Complaint, Exhibit 5, p. 27. She noted that "although it is still unclear whether or not this chemical presents a health hazard to our citizens, it is clear that it presents a hygiene problem for the homeless." Senator Bergeson requested the Governor to use the Cold Weather Armory Program to provide shelter to the homeless during the aerial applications of Malathion bait. The Cold Weather Armory Program is a program whereby the State provides shelter to the homeless in the National Guard armories and transportation thereto during nights of extremely cold weather or rain. Declarations in Support, Exhibit 20, pp. 62-63.1
On February 13, 1990, plaintiffs filed their complaint. That same date, plaintiffs filed an Ex Parte Application for Temporary Restraining Order and Order to Show Cause for Preliminary Injunction, together with supporting declarations of various...
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