Fullerton Wins Effort to Ban Medfly Copters

An Orange County judge on Tuesday refused to force open the Fullerton airport to malathion-spraying helicopters, dealing the state its first legal setback in its 10-month aerial attack on the Mediterranean fruit fly in Southern California.

State agriculture officials, disappointed but undaunted by the ruling, promised to find another base in time for tonight’s scheduled spraying around Garden Grove and Panorama City. They will also consider appealing the ruling.

Medfly Project officials, forced out of their base at El Monte Airport last week by noise complaints from neighbors, sought to move their helicopter operations to Fullerton Municipal Airport for at least three more rounds of malathion spraying in Orange and Los Angeles counties, scheduled to last through mid-June.

But the idea met with protest from Fullerton city officials, who complained about noise and safety concerns at an airport that has already drawn demands for closure from some critics after several plane crashes there.

Henry Voss, director of the state Department of Food and Agriculture, responded Friday with a terse letter to the Fullerton mayor that pointed out the state’s broad emergency powers and reminded city leaders of their own obligations as “responsible officials.”

That set up Tuesday’s showdown in Orange County Superior Court in Santa Ana.

Lawyers for the state, Fullerton and the city of Buena Park waited anxiously for 3 1/2 hours as Superior Court Commissioner Julian Cimbaluk read legal arguments in his chambers. (Buena Park officials have often complained about safety problems at the neighboring Fullerton airport.)

Finally, at about 5 p.m., with lawyers and reporters gathered around, Cimbaluk’s clerk emerged from chambers to announce that Cimbaluk had refused the state’s request for a temporary restraining order that would have forced officials to open the airport to anti-Medfly helicopters.

Cimbaluk said in his brief decision that the state had not shown enough of an emergency to warrant such an order before a hearing could be set to explore the issue further.

Cimbaluk set another hearing for June 8--just five days before Medfly Project officials had hoped to spray Compton for the final round of malathion applications in Southern California. There are two rounds of applications scheduled in the interim: one tonight around Garden Grove and Panorama City, and another on May 30 around Garden Grove.

Among those standing watch at the court for Cimbaluk’s decision was Medfly Project Deputy Director Don Henry, in charge of the program’s day-to-day operations. Asked minutes after the announcement what the state would do now, Henry responded bluntly: “Spray.”

Both he and Robert Fox, the chief deputy director of the state agriculture department in Sacramento, said they did not believe that the ruling would prompt any delay in tonight’s spraying or in any future aerial applications.

State agriculture officials will confer this morning on whether several other potential airport sites can be used as helicopter bases and whether they should appeal Cimbaluk’s ruling, officials said.

“We’re going to be doing some scrambling to figure out what to do now,” Fox said.

Henry added: “As far as I know, we’re still going to spray. . . . I’m not going to wait” until the June 8 hearing.

He added that barring a successful appeal, the state would abide by Cimbaluk’s ruling and scrap plans to move their helicopters to the Fullerton airport by late this afternoon. “We don’t like to do anything by brute force,” Henry said.

The decision marks the first time that the state has lost a legal challenge in its $30-million Medfly eradication campaign in Southern California, which began last fall in an attempt to protect the state’s $16-billion agriculture industry from the Medfly.

At least seven times in recent months, Southland municipalities and other malathion critics have gone to court to try to block the state’s sprayings on the grounds that it poses risks to endangered species, the environment, the homeless and other people. And seven times, the protesters had lost.

But unlike virtually all of those previous challenges, Fullerton attorneys made clear that they were not criticizing the spraying itself--only the “haphazard” way in which they said the state had gone about switching its malathion airport operations on such short notice.

In a declaration included as part of the city’s lawsuit, Fullerton Municipal Airport Director Roland Elder said the use of as many as six Bell 206 helicopters at the facility poses “a significant danger.”

He likened the idea to “attempting to conduct battleship operations in a fish pond.”

The Fullerton site is designed primarily to help accommodate overflow traffic at other, larger airports in the area. Using the airport for malathion helicopters would force changes in existing takeoff and landing patterns and significantly increase the risk of a serious nighttime accident--during hours when there are no air traffic controllers on duty, Elder argued.

Fullerton attorneys also cited noise as cause for concern.

Saying that the state seems to hold an “anything goes” attitude toward sprayings, attorney Jeffrey Wertheimer, representing the city of Fullerton, said: “We think (the sprayings) could go on for a while.”

But state officials, in their written arguments before Cimbaluk, countered that emergency declarations issued by Gov. George Deukmejian and supported by resolutions of county supervisors in Orange and Los Angeles counties give them the authority to use the Fullerton airport. The city’s refusal to honor that emergency power, the state argued, threatens the Medfly eradication effort and, ultimately, California agriculture.

State officials said that they looked at six other airports besides Fullerton--in Long Beach, Burbank, Huntington Beach, Santa Monica, Los Alamitos and Sylmar. But for reasons such as restrictions on nighttime flying, none of those airports worked out, Henry said.

Its physical layout and its proximity to a 36-square-mile spray zone around Garden Grove--now the largest remaining application area in the Southland--made Fullerton the logical choice, Deputy Atty. Gen. Clifford T. Lee said. “We’re not picking on Fullerton,” he insisted.

Attorneys for both the state and city said they would be willing to look at a compromise settlement in the wake of Cimbaluk’s ruling.

But Fullerton Mayor A.B. (Buck) Catlin, calling the ruling “a vindication of our position,” said: “We want the state to look at other alternatives that are practical for the city and for them.”

Those alternatives, he added, should not involve the Fullerton airport.

Times correspondent Tom McQueeney contributed to this report.