Judge Strikes Down Long Island
Aerial Pesticide Spraying Permit
Victory for traditional uses,
clean water, and wildlife
May 02, 2007
An Alaska State Superior Court judge decided in favor of safe
wild foods, clean water, and wildlife when he reversed a Department
of Environmental Conservation (DEC) permit that would have allowed
Klukwan, Inc. to spray pesticides from a helicopter on Long Island
near Prince of Wales Island. The judge's decision follows an
appeal of DEC's decision filed on June 19, 2006 by the Hydaburg
Cooperative Association, City of Hydaburg, Central Council of
the Tlingit and Haida Indian Tribes of Alaska, Organized Village
of Kake, Southeast Alaska Conservation Council, and Alaska Community
Action on Toxics. Briefings and oral arguments were made by the
parties on March 19, 2007.
"This is a great win for the Tlingit and Haida people,"
said Bill Martin, President of the Central Council of the Tlingit
and Haida Indian Tribes of Alaska. "It protects the customary
and traditional use areas that are so important to us. It's definitely
something to celebrate!"
One of the main concerns that brought the different parties together
on the appeal was the precedent the permit would set to allow
aerial spraying of chemicals near salmon streams, hunting areas,
and locations used for gathering traditional foods and other
resources. Buck Lindekugel, Conservation Director and staff attorney
for the Southeast Alaska Conservation Council, was lead counsel
for the parties in the appeal.
"This is great news for Hydaburg," said Anthony Christiansen,
Mayor of Hydaburg and Environmental Planner for Hydaburg Cooperative
Association. "People here were extremely worried about the
effects of spraying these chemicals on their traditional foods."
The decision addressed four concerns:
- Agency decisions must be reasoned
and explained; DEC failed to do so. The judge's opinion stated,
"[I]t is in the social interest to have decisions adequately
explained and the factual basis of a decision known to the public.
Citizens have a right to know those things so that they may have
faith that government makes reasoned decisions. That wasn't done
in this case."
- DEC must consider the safeguards
in state regulations that protect water quality when reviewing
an application for a permit to apply pesticides from the air.
DEC failed to do so for this permit.
- DEC abused its discretion
when it imposed buffers around eagle nests that were much smaller
than buffers suggested by US Fish and Wildlife Service to prevent
interfering with nesting.
- There is no evidence in DEC's
permit decision documents showing that the agency took a hard
enough look at the impacts of aerial spraying on groundwater
in the limestone geology (karst) of Long Island.
On March 1, 2006, the DEC issued
a permit to Klukwan, Inc. to spray a cocktail of 2 pesticides
and 2 other chemicals by helicopter to kill "unwanted"
alder and salmonberry in previously clearcut land owned by the
Native corporation. Klukwan, Inc. planned to spray over 1,965
acres on Long Island, near Prince of Wales Island. There has
been controversy over the plan since it was first proposed in
1999. The appeal followed a request by 48 Native, conservation,
fishing, and health organizations and individuals for DEC to
reconsider the permit. DEC refused to hold an agency hearing
on the permit following that request.
"If Klukwan, Inc. wanted to make the forest grow back faster
after clearcutting, they could just go in and cut the alder,"
said Mike Jackson, Natural Resource Specialist of the Organized
Village of Kake. "Aerial pesticide spraying just isn't called
for anywhere in Alaska."
"This is a significant decision that serves to protect the
health of people, subsistence resources, and water quality,"
said Pamela Miller, Executive Director of Alaska Community Action
on Toxics. "Over the last six years Alaskans from around
the state have been working to limit aerial spraying of pesticides
and advocate for safe alternatives."
"We've said all along DEC didn't make an honest effort to
address people's concerns about spraying pesticides from the
air," said Russell Heath, Executive Director of the Southeast
Alaska Conservation Council. "All Alaskans should be heartened
that the court has required DEC to go back and take a hard look
at an activity that puts our clean water and other resources
at such great risk."
Sources of News:
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Central Council of the Tlingit
and Haida Indian Tribes of Alaska
Alaska Community Action on Toxics
Natural Resource Specialist of the Organized Village of Kake
Southeast Alaska Conservation Council
Environmental Planner for Hydaburg Cooperative Association
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