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United States v. Moore

ELR Citation: 16 ELR 20963
Nos. No. 2:86-0724, 640 F. Supp. 164/(S.D. W. Va., 07/22/1986)

The court holds that the federal government may prevent West Virginia from using the pesticide BTI against black flies in New River Gorge National River without a National Park Service (NPS) permit. The court first notes that the sate's concurrent jurisdiction over a federal preserve would not generally undermine federal regulation of lands within the preserve. Supreme Court interpretation of the Property Clause of the Constitution affords the federal government regulatory power superior to and not limited by that of the state. The court holds that the Property Clause authorizes the federal government to regulate even nonfederally owned lands affecting the federal preserve. Congress has afforded the Secretary of the Interior extensive regulatory discretion in National Parks System management generally, and specifically concerning the New River Gorge National River. Although the Secretary of the Interior has not promulgated regulations specifically concerning pesticides, the court holds that regulations prohibiting the destruction of wildlife effectively restrict pesticide use in a national park without an NPS permit. The court notes that NPS Management Policies and a Department of the Interior manual do provide guidelines for pesticide use despite the Secretary of the Interior's failure to promulgate specific pesticide regulations. Even assuming the state has correctly identified black flies as a public health problem, it must first cite the problem to the Secretary of the Interior or the NPS; only if the state's pesticide permit application is arbitrarily denied may it seek judicial relief to allow pesticide use in national park lands.

Counsel for Plaintiff
Sarch G. Sullivan, Gary E. Pullin, Ass't U.S. Attorneys
P.O. Box 3234, Charleston WV 25301
(304) 345-2200

Counsel for Defendants
Charles G. Brown, Attorney General; Kristi Treadway, Deputy Attorney General
Rm. E-26, State Capitol, Charleston WV 25305
(304) 348-2021