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What follows is Richard Sigler, Attorney at Law's comments at
the Legislative Briefing on Malathion and Medfly Issues
held May 10, 1995 in Monterey Park City Council Chambers.
Monterey Park, California

Click here to view unabridged TRANSCRIPT OF PROCEEDINGS


Mr. Richard Sigler is an Attorney at Law in private practice since 1971. He graduated from USC and he is currently teaching at USC. He has lent his expertise to several lawsuits against the use of malathion on urban poulations.

He became involved because his wife got so sick from the malathion. So it's not anecdotal to him. He has had personal experience. His is the inside view of why there has been no legal remedy in the courts and what must be done to change that

MR. SIGLER:

Thank you. You talk about studies and disputes over whether the studies show that there are adverse health effects or whether there will be cancer in the future, that sort of thing. I don't need to know any of those studies. I do know what it did to my wife and I know what I now believe it did to me. I wanted to wait a few years to be sure that the asthma that I got in the spring of 1990 did not come back. It has not in the ensuing four years, so I'm reasonably comfortable that that was brought on by the malathion as well. As my allergist said, his business increased dramatically during that period of time.

I won't go into my wife's story. I'm sure some of the doctors in the audience would dispute it. But basically when you were mentioning the economic costs that are not taken into account of health effects, Dr. LeVeen, I will tell you that on my tax return for 1990 1 took %52,000 off from my taxes, and in 1992 where my wife continued to have ill health effects, I took $20,000 off. There's $72,000 of tax deduction. Never mind how I found the money to do it. That was the federal government and the state government losing collectively approximately half that amount just from one family. So it is not an insignificant amount of money. It's not just a deductible on a couple of office visits to your GP. It can be a significant amount of money.

What I wanted to talk to you about, especially since there are a lot of representatives of the public here, is why there's been a failure in the normal mechanisms that we have legally and politically to try to address the problem, resolve this, the questions that have been presented today, and what we might all do about it to try to reverse this.

What we've seen today are a lot of, who are at least to me, esteemed people. I've seen a number of them before. They have lots of initials after their names, they work in prestigious places, and their resumes seem to indicate they know what they're talking about on this issue. Of course, the CDFA and USDA and a number of opponents of malathion spraying have an equal number of people with initials after their names and apparent credentials as well.

You know that, of course, those people all work for pay. They all work for Big Agriculture. They come from Big Agriculture. They go back into Big Agriculture. We need only to look at the employment history of Henry Voss, for example, who came as the head of CDFA appointed by Governor Dukemejian from the California Farm Bureau. Voss recently, unfortunately, overlooked $450,000 worth of outside income that might have been a conflict of interest for him and became

an embarrassment to presidential candidate Wilson and is now going to find his way, I guarantee you, back into Big Agriculture. We just need to wait a little while and find out how that plays itself out.

In any case, compare those people with the people who took a day off from earning their livings and came up here for no compensation -- and walked away from income. We're not looking for glory for that. We have a reason for being here. That's because we believe in what we're saying.

Now, compare that with the people on the other side, and perhaps you'll conclude, as I do, about the side that is being more neutral and really believes in what they're saying versus the side that is being paid to come to the conclusions that they're coming to.

Now, there are scientists and there are doctors on the other side, and one presumes they have a measure of integrity, or they wouldn't continue to be able to work in the business. So we have to assume it's a legitimate conflict in the facts here.

Now, in society, in the legal society and political society that we've created for ourselves in this country, we don't all become scientists, we don't all conduct the same research, we don't all find out for ourselves what the answers to these disputes are. We just can't do that. Politicians can't do that, bureaucrats can't do that, and concerned citizens who vote can't do that.

We rely on a number of mechanisms that are built into our political and legal system to try to let other people resolve that. These mechanisms include procedural safeguards that call for people to testify under oath, call for all the evidence to be provided, call for a neutral evaluator of the facts, and it is on that basis that we have a mechanism to resolve these disputes.

In particular, I want to focus on several that would apply to this kind of a dispute. One is the separation of powers and checks and balances dichotomy that we've built into our political systems. You have a Legislative Branch which -- enacts the policy and does some fact-finding. You have the Executive Branch which carries out the policy and decides where to apply it to a given fact situation. And you have a Judicial Branch, which -- if there is a person who is aggrieved can bring a lawsuit. A neutral party different from the other branches will make a determination about whether the Legislative Branch enacted something that it could do and whether the Executive Branch enforced it in a proper way given the specific fact situations. That is a mechanism that we have to try to resolve disputes like this.

We also have a regulatory mechanism in this country. We have a lot of agencies that are what we call quasi-administrative, such as the EPA, the California Department of Food and Agriculture, US Department of Agriculture, the FCC, the FAA -- these are all agencies that engage in some legislative and policy-making decisions. They also enforce and there's a little bit of judicial behavior that goes on in those agencies as well.

So we have a whole structure where pesticides have to be registered, where environmental laws have to be complied with, and we also have built-in countervailing agency authority; for example, in the federal government the US Department of Agriculture does not have jurisdiction over pesticides. That's a separate government agency called the Food and Drug Administration. And they can have separate interests.

In California; however, we have just one agency that handles all of those, and that's the California Department of Food and Agriculture. It also handles the registration of pesticides, and there is no countervailing agency concept.

And the final area that we have built into our legal and political system is the right of individuals to sue. They can go into court and have their day, prove their case, cross-examine the other side, make the other side prove its case, and a neutral person in theory will make a decision between those competing interests.

The particular areas that are concerned for malathion spraying are the personal-injury area such as the Macillas case that has been discussed today about the boy who was blinded. We have a concept of the taking of property, there's injury to property, that's eminent domain, and we have constitutional rights of the political minority in this country.

Even though we have majority rule, under our constitutional form of government, you cannot run rough shed over certain fundamental rights of people. Just because 99% of the people would like to spray pesticides on the other 1%, if it can be established that that's harmful to the other 1%, there are certain rights that restrict you from doing that even in a democracy.

Now, an example of the environmental laws, by the way, are, of course, the California Environmental Quality Act which is known as CEQA and the National Environmental Protection Act known as NEPA. Those are laws that permit lawsuits to be filed, again, those require Environmental Impact Reports and Impact Statements respectively and permit suits to be filed against those.

Now, the question is have these mechanisms failed or somehow been subverted in the process of spraying malathion, or else why has there not been a resolution of this question? Why are we all here today hearing contrary evidence? Why don't we all know what the answer is?

And I submit to you that, as a result of the influence of Big Agriculture in this country, these mechanisms have been subverted and are not available for the population to pursue the normal avenues of dispute resolution; therefore, we need other avenues of resolution. And I'm going to tell you why I believe they have been subverted.

First of all, as to the separation of powers of checks and balances, I think we all know that in this country there are a handful of extremely powerful interest groups and industries of which Big Agriculture is one. And by "Big Agriculture" I mean to define as those 25% of landowners that cultivate 75% of the land. It's that group of people who have control over the apparatus that regulates the laws relating to agriculture.

You know, amongst some of the other industries were all familiar with -- the Military Industrial Complex, Nuclear Energy Industry also has this kind of domination over our industry over our apparatus of government. And there are several others that we have to pay particular attention to being vigilant when it comes to regulating those industries because they are so powerful economically.

One of the facts that came out in Henry Voss's resignation was the major fund-raising ability that he has demonstrated for Pete Wilson and George Dukemejian. I'm sure, since Governor Wilson has announced that he has raised the most money for the presidential campaign among any of the candidates so far, I think we probably have Henry Voss and agribusiness to thank for a fair amount of that income.

Now, so one way in which agribusiness has managed to subvert the mechanisms that we have to resolve disputes is that they are too powerful an entity in our government, especially our state and our county governments. They're major campaign contributors. There is currently pro-business, anti-environment mood in the country. And finally, the aerial spraying of malathion has never been voted on by the Legislature. And I'm sure the Legislature -- those who support it in the Legislature are very happy about this because they can avoid being on record and they can have their way.

That's one of the mechanisms that has subverted our legal and political process. The other is the use of administrative agencies, quasi-judicial, quasi-administrative agencies like CDFA.

The Legislature early on at the time of Roosevelt decided that it could not make decisions, did not have the time, or the resources, or the expertise to make decisions regarding specific industries such as the Aviation Industry, or the Interstate Transportation Agency, or the Farming Industry, that sort of thing. So they created these administrative agencies that have some legislative-making power. The Legislature would give a general idea of the kind of law that it wanted and the administrative agency would find facts, would promulgate further regulations and would enforce its own regulations.

In so doing, we created a couple of opportunities that I think Big Agriculture has taken care of: No. 1, We eliminated checks and balances. They're all within the same agency. There is now no longer three separate branches to try to compete and where one can lobby and where there are neutral people; No.2, It gave them a much smaller agency that they could get control of. And I think that's what's happened in California with CDFA.

Knowing that this was a risk, the legislators enacted a body of law concerning these administrative agencies that required them to behave in certain ways. They had to take evidence, they had to have open hearings, and they had to allow people like us to present our points of view. However, once those mechanisms were in place and complied with technically, the agency was free to act. And judicial review is limited only to a 30-day period after the agency takes final action and only as if it were reviewing a trial court decision. You may not introduce under general rules new evidence at these hearings, and there is not what we call a "trial de novo" where evidence can be presented again.

This curtailment of judicial review results in their not being a mechanism if the administrative agency is desirous of achieving a certain result of a neutral evaluation.

The people who give evidence to CDFA in this case and on whom they are relying do not have to testify under oath, are not cross-examined by anyone with a contrary point of view. There is no formal forum where their material can be questioned and where they're forced to stand out in the public and make statements in front of people who might object.

All of the normal -- there's no neutral evaluation, there's no judge, there's no jury. It is only the CDFA, which, as I hope I've established, is not a neutral agency to evaluate this. And by depriving a meaningful judicial review of this decision, there is, once again, no neutral review of this.

The final area; that is the rights of the individuals to sue under various theories, has also been curtailed and is not available as a practical matter. There have been very few suits by individuals trying to pursue their rights. I think you probably know that every single city that has ever been sprayed has filed suit against the CDFA except, I believe Camarillo. I'd like to think that's because Camarillo figures it's a pointless exercise. Every other lawsuit has been lost.

Perhaps -- and I'm aware that the city government of Camarillo appears to support the spraying as well. It is, after all, an agricultural area. Hopefully, the electorate will keep that in mind come the next election time.

Now, the use of lawsuits, which would be the normal way we would resolve these issues in the absence of the other two mechanisms that I mentioned, are not available for three distinct reasons: The Doctrine of Sovereign Immunity, The Emergency Powers Act and The Supremacy Clause.

The first is the "Doctrine of Sovereign Immunity" -- a doctrine that began with the Magna Carta in earlier days when there were totalitarian regimes known as kings and the people eventually wrested little bits of power away from the king in small increments. During that period of time, it was established that you could only sue the king if he allowed you to do so. And, believe it or not, in the first part of our country's history you could not sue the United States Government if they ran over you with a horse and buggy or did something else to you.

Gradually over time, of course, government began to realize that it was an actor on people and had responsibilities just like everybody else, and it waived large areas of its sovereign immunity. If you're run over by a military truck or the government does something to harm you in some other way, you can establish that you do have the right to sue because they waived sovereign immunity for most torts and other actions.

For the spraying of malathion, they have not waived their sovereign immunity. They are so confident that they're right, and that there is no need for the rest of us to be able to have a neutral forum and to be able to cross-examine and to be able to present our own evidence under oath and to examine their evidence under oath that they will not waive sovereign immunity.

This also applies to their subcontractors. Now, there are a couple of suits. There's the Macillas case and another case of personal injury. There's another case -- maybe it will come to me in a minute -- where cases are proceeding that were filed in 1990 as a result of the 1989-'90 spraying in Los Angeles.

One of them I just learned from esteemed counsel in that case was just recently thrown out on the grounds of sovereign immunity, and I'm happy to say it will taken up on appeal and maybe some new law will be made in this regard.

In addition, you may also sue the manufacturer of toxic substances under certain grounds. The Macillas case, appears to be proceeding against the manufacturer on those grounds even though the State would have you believe that manufacturer was acting in a state capacity and should have the same sovereign immunity that the State has.

There are some recent cases that seem to be taking some chunks out of that sovereign immunity defense. They just came up in the newspaper recently, and I'11 provide you with a copy of them in case you haven't seen them. But there was a case where an individual who was injured by a police car during a police chase, a neutral person was able to bring a case against the jurisdiction defendant on the grounds it was A) an emergency; and B) it had sovereign immunity which it had not waived, and the court held that the individual was entitled to recover.

In addition, another case, Federal case, there was a controlled burn in the Cleveland National Forest. Another example of a typical emergency that we all think of, not defining the one Medfly in Corona; and during the controlled burn, it got out of hand and burned somebody's property. The State defended the wrongful taking on the grounds of emergency action of sovereign immunity. The court held that wasn't going to wash in that case.

So I think that's breaking down. We may have some more luck in the future with this kind of a case.

The second defense that the Government uses being so confident of the facts of its case that it does not want to bother going into court to have to repeat them is the "Emergency Powers Act." I think you've heard some people talking about how the State routinely declares an emergency. It has done this for over a decade virtually annually and sometimes many more times than annually.

It declares an emergency. And if you know your political history, you know that the use of the emergency power and emergency declaration is the last refuge of the tyrant. That is the way totalitarians and dictators assume power in otherwise democracies. First, they declare some sort of emergency, usually trumped up, then they declare that all the normal mechanisms for dispute resolution and protection of other parties' interests are no longer available to you, and that's exactly what's going on in this case.

In the lawsuit in San Francisco on the Environmental Impact Report, we have obtained documents from CDFA's files that indicate they don't care about all the other avenues of redress that we might have. They don't care if they lose on the EIR, they don't care if they lose on sovereign immunity as long as they can keep their emergency powers pabulum they are very happy ,thank you.

And right now there is not even a mechanism to determine whether the "Declaration of Emergency" is bogus or not. Simply the Governor signs a requested "Statement of Emergency", which in the recent decade he has done every time requested by CDFA. There is no mechanism to challenge that. That was the one, I believe, Corona's theories in its lawsuit and the court reluctantly agreed it had no authority to question the Governor in that regard.

The final act, even if we could overcome the "Doctrine of Sovereign Immunity" and the "Emergency Powers Act" at the state level or the county level, there is the "Supremacy Clause", and this is a clause that says that the higher order of government controls the lower order of government.

Technically speaking, the eradication operations, as you may know, are carried on by the counties. The County of Los Angeles requests and receives aid from the State. In turn, the State receives aid from USDA which in the end finances the bulk of the eradication, monitors and determines how the eradication will take place.

So no matter if you win against the County and stop them from doing so, the State may say, 'Well, under the "Supremacy Clause", we're ordering or we're doing it ourselves." And if you win against the State, you now have to go against the Federal Government.

So you have to win your lawsuits as much as three times in this kind of an environment.

Now, finally, what can we do about this? Remember that this is the Government that is telling you that this program is perfectly safe. It's the same government that brought you DDT, Agent Orange, the "GulfWar Syndrome." They told you there was nothing there. It was probably mass hysteria until, of course, a congressman showed up with it, then all of a sudden it became real. They're the ones who brought you Rocky Mountain Flats where tons more nuclear waste went in than came out. And they purported to explain that they were able to neutralize it in ways that could not be measured coming out. It also did atmospheric nuclear testing in the '50's intentionally exploding bombs in the atmosphere in Nevada that was downwind of Los Angeles so they could do demographic studies on us. But, there's so much pesticide they're using on us, I don't know how they can consider that a control.

Anyway, it's the same government now telling you that malathion is perfectly safe. So maybe we should question it a little bit.

First thing we should do is we should shine a light on this which is what this kind of forum is all about. Those of you who are in the press, those of you who have constituents of various kinds, including electoral constituencies, should simply be conveying the information, asking the questions, saying there's something you want to find answers about. You don't have to necessarily have an opinion about who's right or who's wrong. You just need to make it known that you want to find an answer to these questions.

Second thing we can all do is we can urge those in power to conduct more research. And the research should not be that controlled by the agricultural and chemical establishment, the people who get their next research grant from these people and who will go into that business when they retire. This research should be done by neutral people and the research should be about health effects, it should be about the efficacy of the program and it should be about alternatives.

Now, the United States Government may have some of these answers, certainly about the health effects. I don't know if many of you know this, but the entire United States chemical arsenal,warfare arsenal, is organophosphates, starting probably with sarin, the horrible granddaddy of the same kind of chemical that malathion is and the one, of course, that was used in Tokyo. They have information about this, but it's confidential. They do not want our enemies apparently to know how you determine that this drug is in use, how to counteract it and that sort of thing.

One of the things we need to do is just get that existing body of information be released to us and made available.

And the final thing we need is a neutral forum where we can have our normal judicial remedies available to us to cross-examine this evidence and present our own evidence. That can be done, as Senator Torres suggested, by Legislative hearing, although they tend to be notoriously shallow and there's not an awful lot of cross-examination done. That would, nevertheless, be a start.

The real remedy would be to allow us into a court of law, waive the sovereign immunity, and get rid of the emergency exemption. Let us just go in and have a free-for-all with the State Attorney General making its case and the rest of us would presumably doing our work voluntarily, making our case. Let us cross-examine their witnesses, let them cross-examine our witnesses. And let us apply the existing laws that have been waived such as the pesticide registration laws and the laws that would otherwise prohibit this massive boon doggle from going on.

If, say, a big agricultural combine like Sunkist decided it would be desirable to spray Los Angeles with malathion to protect its fruit, it would not be allowed to do that. It's against the law. But when the State of California wants to do that on behalf of Sunkist, that's okay. We'll waive everything that's in the way.

Let's just stop the waivers. Let's let the existing legal structure work, and I assure you we'll get the answer to some of these questions.

And finally, the ultimate thing we can do to those in power is plain stop the spraying. Let's just make it illegal. That can be done. The electorate can do that. Electorate can do that by communicating with its elected representatives. There's the "Initiative Process." And that's, you know, probably the hardest thing to do because we're coming up against Big Agriculture, but that certainly would be a direct stopping it.

And let's make it a trade issue. I think you heard that--ultimately it took me a couple years to realize that this was not just big agriculture versus bad science versus, you know interest groups and whatever. It is a major trade issue and, as such, it can be treated as a trade issue.

You heard Dr. LeVeen state that the method of shipping fruit by itself in refrigerated cargo ships for several days is enough to get rid of the Medfly. It does not have to be sprayed. Even if it is, it can be sprayed as fruit. You do not have to spray people.

So there are lots of other things that can be done, and we can put pressure on the Japanese sources to accept some of these other alternatives.

Thank you very much. Good luck to us all.

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