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State Seeks to Block El Cajon’s Witness on Effects of Malathion : Environment: The city’s lawsuit to halt aerial spraying against the Mexfly goes to trial today, but not before a hearing that could effect tactics in the case.

TIMES STAFF WRITER

The city of El Cajon’s lawsuit to halt aerial malathion spraying goes to trial today. But before it does, the city’s attorney is expecting the state of California to try to blow a hole in his case.

Stephen M. Eckis, El Cajon’s deputy city attorney, said the state attorney general’s office told him Tuesday that it plans to file a motion to prevent him from calling witnesses to testify on malathion’s effects on human health. A hearing on the motion is scheduled for 8:30 a.m., just before the 10 a.m. trial.

Even if Municipal Judge J. Michael Bollman, sitting in Superior Court, decides in the state’s favor, Eckis predicted that El Cajon still will have a fighting chance. However, Eckis fears that such a decision could reduce El Cajon’s case to a series of legal technicalities. In a trial brief filed Tuesday, Eckis asserts that the state agriculture director Henry J. Voss violated state law when he decided to use the pesticide to wipe out a suspected infestation of Mexican fruit flies, or Mexflies.

“The specific purpose is to convince the judge that there is substance to our legal challenge, and it’s not merely technical,” said Eckis, who said he has retained an expert witness from the University of Illinois to testify on how malathion affects people. “Simply because the director violated the law does not mean that the judge is going to issue an injunction” to stay the spraying.

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“Most of the public is concerned about the effects on themselves and their families,” Eckis said, adding that the state’s motion would “prevent the public from receiving an airing of this issue of whether or not the spraying of malathion does present a health hazard. So far that’s been a pretty closed discussion. The court process is the process by which we allow the public to examine it.”

Last week, on May 21, attorneys for the city lost battles in two different courts as they attempted to prevent helicopters from administering the first of three malathion doses over a 16-square-mile area. In swift succession, Judge Bollman and then two judges from the state Court of Appeal ruled that state officials had not overstepped their authority in declaring a state of emergency in San Diego County and ordering the spraying.

Now, Eckis is hoping to persuade Bollman to issue an injunction to prevent the second application, which is scheduled for June 4. In a 37-page trial brief that called the spraying an “indiscriminate, intrusive and most injurious attack” upon El Cajon, Eckis alleged that Voss violated pest eradication statutes and the California Endangered Species Act. He said the spraying constituted a nuisance and questioned whether the discovery of three Mexflies constituted an infestation.

Further, the brief inquires as to how state officials decided the size of the spray area and the frequency of the applications. And it questions whether all non-pesticide options were exhausted before the spraying was initiated, as is required by the Food and Agriculture code.

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“While it is important to contain or eradicate the Mexfly, it is more important that governmental decisions be based upon a rational analytic process articulated in written findings,” the brief said. " . . . Only if that is achieved will the citizenry have confidence in its government. The public’s confidence in its government is far more important than the Mexfly project at hand.”

The state attorney general’s trial brief counters all of Eckis’ claims, asserting that the state has been entirely lawful and proper and calling El Cajon’s legal challenge “rather vague.”

“It is most important for the court to understand that California simply cannot live with the Mexican fruit fly,” wrote Deputy Atty. Gen. Charles W. Getz IV. “Its impacts would be devastating both to the economy of the state and to the health of its citizens. . . . Any delay is tantamount to admitting that Mexican fruit fly is in California to stay.”

Getz also points out that during a state of emergency, the state’s powers are greatly increased. Ideally, he writes, there will be no adverse impacts on endangered plant or animal species.

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“However, even if there were evidence of such secondary impacts . . . the fact that this is an emergency renders such impacts unfortunate but necessary,” the brief states. “Increased use of pesticide, increased food prices and the attendant economic distress for all of California is a high price to pay for the rather vague environmental concerns expressed by the petitioners herein.”


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