Audubon Society of Rhode Island v. Hayes

No. 72-1397 (R.I. Super. Ct. May 31, 1972)

Because the ordinary procedure under the state Administrative Procedure Act would have taken too long to complete, the Rhode Island Department of Natural Resources could use an emergency procedure to authorize spraying of 64,000 acres with the pesticide Sevin. However, any permanent program of spraying must comply fully with the ordinary procedures of the Administrative Procedure Act and must be reviewed by this court. Two plaintiffs in the present action, operators of a fish hatchery and an herb garden, are entitled to orders forbidding the State from spraying Sevin over or near their property. Moreover, before the State may spray, even on an emergency basis, it must give 72 hours public notice and permit members of the public to request that their property not be sprayed.

Counsel for Plaintiffs
Louise Durfee
Tillinghast, Collins & Graham
1030 Hospital Trust Building
Providence, Rhode Island 02903

Counsel for Defendants
Richard Israel Attorney General
State House
2050 Benefit Street
Providence, Rhode Island 02903

[2 ELR 20509]

Murray, J.

Order

This matter having come before the Court on a complaint to enjoin Defendants from carrying out their stated attempt to use and apply by means of aerial spraying the chemical pesticide Sevin (carbaryl), a member of the carbamate class of pesticides, to approximately 64,000 acres of land in the State of Rhode Island, whereupon the Court having considered the complaint, affidavits and exhibits attached thereto, and testimony and memoranda and argument of counsel, the Court makes the following findings of fact:

1. Plaintiff, American Fish Culture Company, a Rhode Island corporation engaged in the promulgating and sale of live fish, and located within the area designated by the Defendants to be sprayed by aerial means with the chemical pesticide Sevin (carbaryl), alleges it will suffer immediate irreparable injury, loss and damage to its fish population and its business if the Defendants conduct an aerial spray operation with the chemical Sevin (carbaryl) directly over the land owned by American Fish Culture Company or in such proximity to permit, by accident or otherwise, the direct or indirect exposure of said Company's property by drift, drainage, washoff or other means, to the chemical pesticide Sevin (carbaryl) proposed to be used by the Defendants.

2.Plaintiff, Heinz Grotzke, a resident of Wyoming, in the Township of Richmond, Rhode Island, and owner of the Meadowbrook Herb Garden in the same location, a location within the area designated by Defendants to be sprayed with the chemical pesticide Sevin (carbaryl) by aerial means, alleges he will suffer immediate irreparable injury, loss and damage to himself and his herb business if the Defendants conduct an aerial spray operation with the chemical pesticide Sevin (carbaryl) directly over the land owned or used by Heinz Grotzke in his business, or in such proximity to permit by accident or otherwise, the direct or indirect exposure of said property by drift, drainage, washoff or other means, to the chemical pesticide Sevin (carbaryl) proposed to be used by the Defendants.

WHEREFORE, it is on this 31st day of May, 1972,

[2 ELR 20510]

ORDERED

That the Defendants be and hereby are each, individually and collectively, enjoined and permanently restrained from using and applying by means of aerial spraying the chemical pesticide Sevin (carbaryl) on the property of the Plaintiff, American Fish Culture Company, or within a distance from the boundaries of said Plaintiff's property in the manner designated by said Plaintiff on the maps attached hereto as Exhibit A. *

It is further

ORDERED

That the Defendants be and hereby are each, individually and collectively, injoined and permanently restrained from using and applying by means of aerial spraying, the chemical pesticide Sevin (carbaryl) on the property of the Plaintiff, Heinz Grotzke, or on property used by him in his business, or within a distance from the boundaries of said Plaintiff's property in the manner designated by said Plaintiff on the maps attached hereto as Exhibit B.^*

ORDER

This matter came on to be heard on the 31st day of May 1972 on preliminary injunction, and was argued by counsel; and there was presented to the Court the document entitled

"RULE MAKING WITH RESPECT TO TREATMENT OF 64,000ACRES MORE OR LESS FOR CONTROL OF GYPSY MOTH INFESTATION",

dated May 30, 1972, being the decision of the Director of the Department of Natural Resources after a Public Hearing; pursuant to Section 42-35-3(b) of the Administrative Procedure Act, and thereupon, upon consideration thereof, it is hereby determined that the Emergency Rule made "WITH RESPECT TO TREATMENT OF 64,000 ACRES MORE OR LESS FOR CONTROL OF GYPSY MOTH INFESTATION" dated May 30, 1972 be affirmed. It is ordered that the Department of Natural Resources will place advertisements in the Providence Journal on three consecutive days setting forth the proposed schedule of aerial spraying of carbaryl (sevin) and further that said avertisements shall contain the telephone number of the said Department so that any resident who does not wish to have his property sprayed may notify the Department within seventy-two (72) hours after the first advertisement appears; that any permanent regulations relating to aerial spraying of gypsy moths issued by the Department of Natural Resources after date hereof, are to be effective only after the provisions of Sec. 42-35-3(a) of the Administrative Procedures Act are complied with and (b) the Court has reviewed those regulations after a hearing upon reasonable notice to plaintiffs.

It is hereby ORDERED, ADJUDGED and DECREED that the preliminary injunction is denied and the restraining order previously entered is vacated.

ORDER

The question presented to the Court in the present posture of the case is whether the document entitled

"RULE MAKING WITH RESPECT TO TREATMENT OF 64,000 ACRES MORE OR LESS FOR CONTROL OF GYPSY MOTH INFESTATION",

dated May 30, 1972, being the decision of the Director of the Department of Natural Resources, should control the decision of this Court on the issuance of a preliminary injunction.

The plaintiffs contend that the Director has not made the determination under § 23-41.1-7 of the General Laws (as added by Chapter 273 of the Public Laws of 1970, known as "The Rhode Island Pesticide Control Law;" that the gypsy moth is a pest, or an organism to be governed by the procedure described therein.

It appears that no such specific determination is necessary since § 2-17-1 of the General Laws, which apparently goes back to 1908, declares the gypsy moth to be a "public nuisance" and states that "their suppression is hereby authorized and required". The legislature in effect confirmed this at its 1972 session when it appropriated money for the specific purpose of controlling the gypsy moth, in resolution 3177.

Even if it were necessary to make a specific determination under 23-41.1-7, the Director has in effect made such a determination in his findings. In the findings of fact numbers 1, 2, 8, 9, and 10 refer to the present and threatened future harm from the gypsy moth.

No contention is made that the Director has not promulgated rules and regulations for control of the gypsy moth under 23-41.1-7, as a result of the hearing, and the failure to make a specific reference to a determination of such an organism, even if necessary, would not be fatal where in substance the Director made the necessary findings to support his decision.

The hearings were held under the emergency provisions of the Administrative Procedures Act in § 42-35-3(b) of the General Laws. It has not been disputed that for the spraying program to be effective this year it must be done so soon that the twenty day notice required in the ordinary case could not be given. It appears from the findings of fact referred to above and from conclusion of law No. 6(c) that there is such an imminent peril to permit the emergency procedure.

The contention that the witnesses were not sworn and that cross-examination was not permitted at the hearing is answered by § 42-35-3(a)(2) which refers merely to the requirement to "afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing". There is no contention that this was not done. This is distinguishable from the requirements in contested cases under 42-35-10.

As to the filing in the Secretary of State's Office required under 42-35-4, it appears from further checking that the rule was filed late in the afternoon of May 30.

The only other question is whether the adoption of the Rule is invalid because of failure to submit it to the Technical Pesticide Advisory Board, under § 23-41.1-22. A reading of this Section in connection with the remainder of the Act, and the Declaration of Policy, indicates that it was not intended to apply to a case such as this of controlled spraying by the state. Rather, it appears intended to apply to the general commercial production, sale and use of pesticides. In any event this section is not mandatory. It speaks of the "comment and recommendation" of the board, but nowhere does it state that a rule can not go into effect without it.

In summary, it appears that the Director of the Department of Natural Resources conducted a lengthy hearing where all interested were given an opportunity to be heard. On the evidence he made carefully considered findings of fact and conclusions of law, outlining the urgency of spraying, the desirability of using Sevin under controlled conditions, and concluding that no irreparable harm will accrue to members of the public from the spraying proposal. There has been nothing to show that these findings are not supported by evidence. Therefore, the rule should be considered as controlling this case, and if necessary, affirmed by this Court, the preliminary injunction denied and the restraining order vacated.

* [Ed. Note: Exhibits A and B, maps, are omitted.]