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July, 2004

New Protections For Salmon In California
By Carol Sterritt

A recent June 23, '04 decision by the Ninth Circuit Court of Appeals spells a big win for salmon and for those of us who enjoy them. In 2002, a case was heard regarding the failure of the EPA to consider the Endangered Species Act in terms of salmon. The lawsuit, brought by environmental groups, asserted that the EPA must regulate pesticide use near waterways where salmon attempt to thrive. The judge hearing that case, Judge Coughenour, ruled that the EPA has to consult with NOAA fisheries in setting up plans that would regulate and perhaps ban certain chemicals, mainly organophosphates, from being used near salmon-inhabited waterways.

Although now under appeal, this 2002 judgment forces the EPA to examine a group of thirty-eight often-used chemicals in terms of their impact on salmon. It will take several if not more years for the EPA to do this. The EPA will determine which of the organophosphates will be prohibited, which will be restricted, and which, if any, will be allowed use without restriction. Such a process is sure to be a lengthy one. During this time, environmental groups along the Pacific Coast decided that buffer zones should be created so that the chemicals could not impact the salmon until the EPA finalized its work They worked hard to pursue a legal injunction to be brought forward requiring these mitigations.

However, industry groups, mainly pesticide and chemical corporations and their users, were equally intent on appealing the 2002 decision. That appeal is not expected to be underway until September 2004 at the earliest. While waiting to hear the results of that appeal, they also decided to appeal the creation of the buffer zones. Since any alliance that includes pesticide industries has lots of money and many high-powered attorneys to aid their cause, environmentalists were nervous. But apparently financial might is not always ruled right. On March 18th, industry lost in court in Seattle. Taking the lawsuit to the next level, that of the Appeals Court in San Francisco, did little to further their hopes. The salmon won, and industry, so often lucky in court because of behind-the-scenes payments, and revolving- door job offers (Can we say bribery, girls and boys?) well, this time industry had to go home empty-handed.

The late June 2004 ruling proves that sometimes the environment and her protectors carry legal clout. "The pesticide industry brought all its resources to bear. They tried to convince the courts to stop salmon protections, but clean water and salmon won," said Erika Schreder, staff scientist with the Washington Toxics Coalition. "The court has looked at the facts and found that action is needed now to prevent pesticide harm to salmon."

Certainly industry umbrella groups including CropLife and other grower groups will be disappointed by this decision. The loss of their appeal means that the 2004 injunction remains in place. These provisions include the creation of no-spray zones of 100 yards for aerial applications and 20 yards for any ground applications of more than 30 pesticides. Also, the requirements remain for in-store warning labels to inform consumers as to the dangers that seven urban-use pesticides may present when used near waterways.

As a result of today's Ninth Circuit decision, the salmon protections put in place by the injunction will remain in place throughout the appeal. Then, after that ruling, should environmentalists remain victorious, the buffer zones and consumer labels will be enforced until that day when the EPA issues its finalized review. The states where these provisions will take place are the Pacific Coast states of Oregon, Washington, and California. And, of course, the provisions that ensure salmon safety also ensure human safety. For everyone including children who enjoy time spent on the Klamath and the Eel River, the Trinity, the Columbia and the Williamette, can now breath a little easier as they frolic on or near these waters.

Additionally food lovers can relax as they indulge in their favorite meal of salmon steak. Patti Goldman of Earth Justice, the attorney in this case, points out that, "This injunction was clearly warranted to get pesticides out of streams while EPA complies with the Endangered Species Act and develops permanent protections for salmon."

The Ninth Circuit Court of Appeals deserves a round of applause for this recent decision. We should be grateful as well to those three organizations that went to bat for our safety: Washington Toxics Coalition, Northwest Coalition for Alternatives to Pesticides, and Pacific Coast Federation of Fishermen's Associations. Be sure and remember them as you suit up to experience your next white-water rafting trip.


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