Homeless Sue to Stop Aerial Medfly Spray

Attorneys for the homeless filed suit Tuesday, contending that aerial malathion applications have sickened many who have no shelter, but a federal judge refused to grant them a court order halting the spraying.

The Legal Aid Society of Orange County, representing 100 to 150 homeless people who live in and around Garden Grove’s Pioneer Park, presented declarations from 13 homeless people who claim they have suffered from dizziness, nausea, diarrhea, cramps, chills, blurred vision and other maladies since the state sprayed the pesticide over their area on Jan. 25.

Arguing that the malathion spraying violated the right of the homeless to be “free from grave personal injury at the hands of the state,” the Legal Aid Society sought a temporary restraining order stopping Thursday’s scheduled spraying of a 36-square-mile area around Garden Grove and Westminster.

Legal Aid lawyers also demanded that the state give 48-hour notice of malathion applications to all homeless people, provide shelter for them during the sprayings and offer medical care and laundry services to those inadvertently sprayed with the pesticide.

But U.S. District Judge Alicemarie H. Stotler refused to make that order, saying she had “serious questions” about whether the homeless had the legal right to press a civil rights claim against the state itself. She set another hearing for Feb. 27 to consider a request for a preliminary injunction. The Legal Aid Society will be allowed to make additional arguments during that hearing.

State Deputy Atty. Gen. Charles W. Getz represented the only defendant, Henry J. Voss, director of the state Department of Food and Agriculture. Getz argued that Stotler had no jurisdiction in the case because the state is not a proper target for a civil rights claim. That section of the law was intended for use against individuals, Getz argued.

Robert J. Cohen, executive director of the Legal Aid Society of Orange County, said “logistical” difficulties would probably preclude him from filing an emergency appeal.

Stotler’s ruling pinned the hopes of malathion opponents on a hearing Thursday in Sacramento Superior Court. Attorneys for the cities of Westminster, Garden Grove and Huntington Beach plan to ask again for a court order halting the pesticide spraying. A judge there has denied that request once already.

Opponents contend that malathion threatens their health, but state officials have stood firm in support of the spraying program, saying it poses no hazard and that it is critical to preserve the state’s $16-billion agriculture industry from the Mediterranean fruit fly.

The County Board of Supervisors, reiterating an earlier action, voted 3-2 on Tuesday to perpetuate the “state of emergency” it declared in response to the Medfly infestation. The largely symbolic move insulates the county from malathion-related liability and facilitates state funding for the spraying.

Getz said the state is currently investigating ways to protect the homeless from the spraying. But Legal Aid officials said they sued because the state failed to make commitments to provide such protection.

“We’d just like the state to oblige the homeless in the same way they oblige dogs, cats and goldfish,” said Legal Aid spokesman Jere Witter.

Cohen said the homeless are not well served by radio and newspaper announcements of malathion sprayings. And posting notices in parks doesn’t help them because they have nowhere to go, he said.

Crystal C. Sims, another Legal Aid lawyer, said a simple solution would be to open California National Guard armories for the homeless during malathion sprayings. The armories currently serve as their shelter in cold and rainy weather, she said. State Sen. Marian Bergesen (R-Newport Beach) wrote to Gov. George Deukmejian on Jan. 19 and made that request, but it produced no results, Sims said.

In court papers, Getz argued that the spread of the Medfly could wreak $200 million in damage on California’s agriculture industry. If the pest gains a foothold, state officials might have to use a million extra pounds of pesticide a week to eradicate it, he said.

In court declarations, officials heading the malathion program defended its safety.

“The state does not consider any one exposure to the aerial application of malathion a health risk,” said Dorthea Zadig, deputy director of the Medfly Eradication Project. “Indeed, our helicopter pilots have reported seeing persons playing golf or engaging in other outdoor activities while the applications are occurring.”

But Cohen noted that even the state Department of Food and Agriculture advises its malathion workers not to enter treated areas until the spray residues are dry. And he pointed to the homeless who are suffering ill health.

Several homeless men detailed their symptoms from the spraying in declarations obtained by the Legal Aid Society.

Henry Hort, 46, said in his declaration that he had burning eyes and such severe cramps they were “like a doubling-over.” David Talevich, 19, said he is having “bizarre dreams” and severe mood swings. Danny Daniels, 29, said he had heart palpitations and diarrhea for three days.