“I wish that the court had upheld the lower court’s decision,” Code said of last week’s appellate opinion overturning a lower court’s decision that supported a National Marine Fisheries Service (NMFS) biological opinion (BiOp).
The BiOp stated certain insecticides are a threat to Pacific salmon. “I feel that they documented very clearly that they used the best science in preparing their opinion,” she added.
The 786-page opinion, originally completed by the NMFS in 2008, concluded the insecticides chlorpyrifos, diazinon and malathion pose a threat to Pacific salmon in Washington, Oregon, California and Idaho.
The opinion recommended those using the chemicals containing these active ingredients be required to follow certain actions in order to protect the endangered species in question.
These include: prohibiting aerial applications of the pesticides within 300 feet of salmon waters; mandating a 10-foot vegetated strip or a 20-foot no spray zone between salmon waters and places where these insecticides are applied; and mandatory reporting of fish kills near where these chemicals are applied. The original ruling came from the U.S. District Court for the District of Maryland at Greenbelt Judge Alexander Williams Jr.
The defendants were the National Marine Fisheries Service, NCAP, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources and Defenders of Wildlife. Plaintiffs were Dow AgroSciences LLC, Makhteshim Agan of North America, Inc. and Cheminova, Inc. USA.
Last week, Code sounded upbeat despite the legal defeat. “Instead of getting bogged down in one court decision, I feel this has started a discussion regarding labeling,” she said. “I feel like, regardless of where these decisions go, I feel like the concerns that the NMFS highlighted really brought out a healthy dialogue. It’s good that this is happening in a healthy, collaborative fashion.”
According to NCAP, the NMFS BiOp was the fifth such plan issued under a court settlement with fishers and conservationists.
The BiOp also reversed earlier assurances from the U.S. Environmental Protection Agency that the three insecticides were not likely to adversely affect the salmon populations in question.
“These pesticides are poisons and do not belong in salmon streams,” said Glen Spain of the Pacific Coast Federation of Fishermen’s Associations, a commercial fishing industry group.
“The bottom line for us is that poisoning salmon rivers puts our people out of work, as well as creates a public health hazard. It is far more cost effective to keep these poisons out of our rivers to begin with than to try to clean up messes afterwards.”