72 Japanese beetles…

At the organization meeting of the newly incorporated Environmental Defense Fund (EDF) on October 6, 1967, the trustees voted to “proceed with caution” before filing any lawsuits, but also to limit their actions to litigation and eschew other means of public protest such as the civil disobedience that was beginning to characterize the activities of the Civil Rights and Anti-War movements at that time and the lobbying efforts of business and industry. But then H. Lewis Batts a Biology professor at Kalamazoo College called to describe the imminent planned application by the Michigan and United States Departments of Agriculture of the broad spectrum, persistent chlorinated hydrocarbon biocide dieldrin to eradicate an alleged infestation of Japanese beetles on 3,000 acres of farmland in Berrien County on the eastern shore of Lake Michigan. Dr. Batts wanted EDF to stop them.

The complaint

Because several communities within the Lake Michigan watershed in western Michigan were still using DDT in a futile attempt to control Dutch elm disease, Yannacone suggested EDF sue not only the Michigan Department of Agriculture to stop the dieldrin application, but also add as defendants nine cities in western Michigan within the Lake Michigan watershed that were still using DDT. Eventually the Court separated the two claims and the Dutch elm case proceeded separately with the cities agreeing to discontinue the use of DDT.

The environmental hazards of dieldrin were still poorly understood but the fear was that the dieldrin would run off the land into Lake Michigan and damage the recently introduced and highly successful Coho salmon fishery so popular with fishermen. Because the biological effects of both dieldrin and DDT on non-target organisms were similar Yannacone crafted the complaint to link dieldrin about which little was known with DDT about which he knew a great deal from the Suffolk County DDT litigation. During oral argument he consistently treated dieldrin and DDT together, as though they were one hyphenated word. One of the key points in the complaint that Yannacone insisted on was offering effective but environmentally less dangerous alternatives to both pesticides for the use intended. For example, sanitation of elm trees which saves the trees while DDT does not.

The preliminary injunction

On Friday, October 20, Victor and Carol Yannacone, Robert Burnap the first fundraiser for the fledgling EDF, and Charles F. Wurster, a chemist and bird watcher who had done pioneering early work on the effects of DDT on song bird populations at Dartmouth College all flew to Kalamazoo, where they joined Dr. Batts who had arranged for us to use the law office of his attorney, Edward P. Thompson, in Kalamazoo for the weekend to finish the complaint. The next day they were joined by Ecologist John Cantlon, the provost of Michigan State University who contributed the phrase “Lake Michigan Regional Ecological System” to the complaint which permitted Yannacone to effectively argue that effects from pesticide applications on non-target organisms were important and must be considered by the Court. Over the weekend of non-stop round the clock work, Yannacone and the EDF scientists prepared the complaint and the supporting “scientific appendix.”

Because the dieldrin application was to be jointly funded by the Michigan Department of Agriculture and the U.S. Department of Agriculture (USDA) the legal rules at the time seemed to require naming USDA as a named defendant which would set up the case for almost immediate dismissal. Instead, Yannacone just ignored the USDA. On October 23, 1967, Yannacone and the EDF scientific team filed the complaint in the United States District Court for the Western District of Michigan in Grand Rapids. It did not take long for Federal judge Noel Fox to reluctantly dismiss the case when the Michigan Attorney General raised the Eleventh Amendment prohibits federal courts from considering actions brought against a state or a state agency such as the MDA as a complete defense.

Nevertheless, Judge Fox was sufficiently impressed with the serious nature of the lawsuit and the potential danger to Lake Michigan that he suggested to Yannacone that he re-title the complaint and file it in the nearby newly created Michigan State Court of Appeals which did have jurisdiction. He offered Yannacone use of a typewriter in his office and called ahead to the Michigan Court of Appeals to advised them that we would be on our way to their Court shortly. An hour later the Michigan Court of Appeals agreed to hear argument on the application for a temporary injunction against the application of the dieldrin.

The argument

The Michigan State attorney general raised the usual objections to any citizen lawsuit attempting to challenge a state agency in court: lack of standing and failure to state a cause of action. After the attorney general had finished his argument in support of his motion to dismiss the complaint summarily, the chief judge turned to Yannacone and said, “What is the legal basis for your unprecedented complaint?”

Yannacone then presented the basic argument he was to use in all of the cases he has brought to protect the environment. “This action is brought on behalf of all the people of United States who are entitled to the full benefit, use, and enjoyment of the Lake Michigan regional ecological system uncontaminated and undamaged from the application of 10,000 pounds of the broad spectrum, persistant, chlorinated hydrocarbon biocide dieldrin&emdash;the biological equivalent of 100,000 pounds of DDT&emdash;by the Michigan Department of Agriculture in Berrien County to eradicate what they believe is an infestation of Japanese beetles.”

“We assert the sovereign rights of the people of United States guaranteed to them under the Ninth Amendment to the United States Constitution which reserves all of the rights not explicitly given over to the federal government or the state Governments to the sovereign people.” “That among those rights are a right to the ecological integrity of the Lake Michigan Regional Ecological System.”

“We ask this honorable court to take judicial notice that the rights reserved Ninth Amendment are those stated to be the unalienable rights of all mankind in the Declaration of American Independence.”
“We ask this honorable court to take further judicial notice that the rights claimed for the people in the Declaration of American Independence are an extension of those rights won on that plain in Runnymede in 1215 when King John was forced to recognize the rights of free Englishmen and accept limitations on the so-called Divine Right of Kings.”
“Finally we ask this honorable court to take ultimate judicial notice that the rights of the sovereign people do be free of serious, permanent, and irreparable damage to their environment were established on that mountain in Sinai thousands of years ago, the Ten Commandments.”

The brevity and boldness of the argument stunned the Michigan Attorney General and the assembled journalists who had filled the small courtroom. After huddling on the dais, the three Judge Court issued a temporary restraining order prohibiting the MDA from making the dieldrin application.

The 72 Japanese Beetles

A week later the court reconvened to conduct a trial hearing on the merits to consider an application to extend their injunction. With all the EDF scientists in the Courtroom ready to testify, Yannacone called the Director of the Michigan Department of Agriculture as the first witness for EDF! The testimony was short and when it concluded there was no further need for expert testimony from the EDF scientists.

Q. Dr. How did you determine there was an infestation of Japanese beetles in Bering County Michigan?
A. We set traps.
Q. And over what period of time were those traps active?
A. Approximately 3 months.
Q. And did you set those traps throughout the 3000 acres of farmland you intend to treat with dieldrin?
A. Of course.
Q. And what was the efficiency or effectiveness of those traps and the bait they contained?
A. About 30%.
Q. How many Japanese beetles did you trap during those three months on the 3000 acres of farmland?
A. 72 Japanese beetles.
Q. That means there are less than 300 Japanese beetles throughout all of the 3000 acres a farmland in Berrien County where you intend to apply 10,000 pounds of dieldrin which is the biological equivalent of approximately 100,000 pounds of DDT.
A. Yes. Q. And that means there there is only one Japanese beetle in about every 10 acres of all this fertile farmland?
A. Yes.
Q. How many Japanese beetles does it take to make an infestation?
A. One live Japanese beetle. Q. One Japanese beetle makes an infestation?
A. Let me explain. According to the United States Code the presence of any live individual of an insect species declared by the statute to be a pest such as the Japanese beetle establishes an infestation which must be eradicated.

Pests are not much different from Officers & Gentlmen

At this point, the Chief Judge interrupted and ask whether an insect became a pest by act of Congress the same way the soldier becomes an officer and a gentleman by act of Congress. Not seeing the humor in the question, the Director of Agriculture said, “Yes, sir.” Yannacone continued.

Q. Did you kill the live Japanese beetles you found in your trap?
A. Of course. Q. Do two live Japanese beetles make an infestation?
A. Yes. Q. Did you kill those two live Japanese beetles you found in your traps? A. Yes.
Q. Do three live Japanese beetles make an infestation?
A. Yes. Q. Did you kill those three live Japanese beetles you found in your traps?
A. Yes.

When Yannacone reached five Japanese beetles the chief judge interrupted and said, “I know where you are going with this line of questioning. Will you please just get there.” Yannacone complied.

Q. Do 72 live Japanese beetles make an infestation?
A. Yes. Q. Did you kill those 72 live Japanese beetles you found in your traps? A. Yes.
Q. Did that end the infestation according to the letter of the Agricultural Law?
A. I’m not sure.

At that point, the journalists all rose from their seats and rushed toward the exit door of the courtroom. The chief judge pounded his gavel and declared a recess in the hearing. When the court clerk inquired about how long the recess would be, the chief judge replied, “As long as it takes for all of those reporters to find out there is only one pay phone in this building.”

There was really no further need for testimony and Yannacone wisely rested the EDF case preferring to let the court of public opinion eventually decide this case on political and economic grounds rather than the whatever the Law might be. Nature stepped in to do what they courts might not be able to do. The snow began to fall in Western Michigan and there would be no attempt to apply dieldrin to these 3000 acres of farmland that year. Nature had issued its own permanent injunction as winter set in for good.

NYTimes dieldrin 19671112