Court Kills State’s Crazy LBAM Plan

Great News From Frank Egger, who, with Attorney Stephen Volker,has been spearheading this fight:

Hi all,

Here is the press release and actual decision handed down by the court.

This 8 year epic battle has been memorialized both in video by Mary Beth Brangan and Jim Heddle of EON and in the records of state and federal court rooms in San Francisco, Monterey, Santa Cruz and Sacramento. KGO’s radio show host Joanie Greggains kept our message before the public month after month during her Weekend Health & Fitness Show.

Again, thank you all for your continued support.


On this blog edition you will find:



For Immediate Release, December 2, 2015 Sacramento

For more information:
North Coast Rivers Alliance (NCRA): Frank Egger (415) 456-6356
Attorney for NCRA: Stephan C. Volker (510) 496-0600


Today the California Court of Appeal in Sacramento overturned the California Department of Food and Agriculture’s (CDFA’s) Light Brown Apple Moth (“LBAM”) pesticide program in response to a lawsuit brought by North Coast Rivers Alliance, Stop the Spray Marin, California Alliance to Stop the Spray, and environmental leaders from the San Francisco and Monterey Bay areas. In its 42-page ruling, the Court of Appeal held that CDFA had violated the California Environmental Quality Act (“CEQA”) by failing to evaluate environmentally less harmful methods of controlling LBAM such as use of Integrated Pest Management (“IPM”) instead of assuming – erroneously – that only complete “eradication” of LBAM could achieve CDFA’s objective of protecting plants and crops.

The Court agreed with NCRA that CDFA had a duty under CEQA to consider alternatives that would pose less environmental damage while still achieving the LBAM program’s underlying purposes. The Court reversed an earlier ruling by a Sacramento Superior Court judge that had rejected the environmentalists’ lawsuit, and ordered the superior court to grant the relief that the plaintiffs had requested – decertification of CDFA’s EIR and invalidation of its LBAM pesticide program. Had the Court upheld CDFA’s EIR and approval, CDFA would have been allowed to continue placing and spraying toxic pesticides throughout California, including Btk, a so-called “organic” pesticide which kills not only LBAM, but all butterflies and moths, including imperiled species such as the Monarch butterfly.

The plaintiffs praised the Appellate Court’s ruling and expressed hope that CDFA would now reconsider its historic dependence on heavy pesticide use whose “collateral damage” kills fish and wildlife as well as “non-target” insects and birds. Frank Egger, President of the lead plaintiff, North Coast Rivers Alliance, stated that “after eight years of fighting CDFA to prevent its spraying of toxic pesticides on our homes, parks, rivers and forests, we are pleased that the Court of Appeal has ordered CDFA to comply with CEQA and consider less toxic alternatives that will still protect California’s plants and crops.” Mr. Egger added that “We are unaware of any documented case of damage to agricultural production from the Apple Moth. We remain concerned, however, that CDFA may once again stir up unsubstantiated fears rather than follow science and heed the public’s strong preference for safer alternatives to pesticides.”

Stephan Volker, attorney for plaintiffs, stated that “the Court’s unanimous ruling represents a complete victory for the rule of law. It shows that a vigilant public can still be heard by the courts when government and industry ignore them.” Mr. Volker added, “the need for citizens to pay attention, educate their officials, and take action in court when agencies fail to do their job could not be greater. California is experiencing an unprecedented decline in fish and wildlife due to habitat destruction and pollution, including poisoning by some of the same pesticides that CDFA intended to use in its ill-conceived LBAM ‘eradication’ program. But for the courage of the plaintiffs and the Court of Appeal’s careful review, we would be facing continued pesticide use under this unlawful program.”

Frank Egger of North Coast River Alliance & Environmental Attorney Stephen Volker led the litigation.


Hi Steve and all,

Well, this has been quite a journey. It started in 2007 in Santa Cruz and Monterey counties when their communities and residents were aerially sprayed with the pesticide, Checkmate, to eradicate the Light Brown Apple Moth (LBAM). The claim was LBAMs were going to destroy everything in their path from farms to forests. Folks in Santa Cruz and Monterey challenged the spraying and the so called emergency declaration as a reason to bypass the California Environmental Quality Act (CEQA). Both Santa Cruz and Monterey Superior Courts agreed with the plaintiffs and ordered the CDFA to comply and prepare an EIR. Next the CDFA set its sights on the San Francisco Bay Area for spraying Marin, San Francisco, San Mateo, Santa Clara, Alameda, Napa, Sonoma and Contra Costa counties.

In early 2008 I met with Santa Cruz city councilmembers Ed Porter and Tony Madrigal in order to fully understand what happened down there and in hearing the horror stories, I knew we had to stop it up in the SF Bay Area.

Here in Marin Judi Shils and I organized the first SF Bay Area LBAM community meeting that we held in Corte Madera. We had a number of speakers, including Steve Volker, and as a result we decided we would not be aerially sprayed with pesticides, ever.

We filed in Federal Court in 2008 with some success. The new PEIR was released and after much written and oral testimony that resulted in very little change, we challenged its sufficiency in State Court in Sacramento in 2010 and then it became the subject of a CDFA bait and switch action in the Superior Court courtroom in Sacramento.

Eight years later and 5 years after we first filed in State Court, we can today tell you justice has prevailed. We wanted to let you know immediately that all of your hard work for the past eight years has not been in vain and we want to say thank you for everything, your community meetings, march across the Golden Gate Bridge, picketing, contributions, continuing attendance at functions at critical times and of course the many fundraisers you helped us put on.

The old saying, “never give up” is so true and thank goodness Steve Volker and his crew stayed with us. If you have to go to court, you might as well have the best lawyers on your side.

Email me if you want a copy of the Appellate Court order.

More to come,

Thanks, Frank


Good morning.
I am pleased to advise you that we have won our lawsuit against the LBAM spraying program. The Third District Court of Appeal, per Justice Harry Hull, ruled unanimously today that CDFA’s Programmatic Environmental Impact Report on the state’s Light Brown Apple Moth Eradication/Control Program violates CEQA. The Court reversed the Superior Court’s ruling against us, and directed Superior Court Judge Lloyd Connelly to enter judgment in our favor and to issue a writ of mandate setting aside CDFA’s certification of its unlawful PEIR and approval of this illegal program.

We won on the two most important issues. First, we persuaded the Court that CDFA had engaged in a “bait and switch” whereby it approved an EIR for an eradication program that would end in 7 years, but in fact approved instead a control program that would potentially last forever. Second, the Court agreed with us that CDFA had improperly rejected alternatives that would have less impact on the environment because they would only attempt only to control, rather than eradicate, the LBAM. These two arguments were the heart and soul of our case.

​W​e achieved both of our objectives of invalidating the EIR and overturning CDFA’s approval of this ill-conceived pesticide program. So this is a major victory for you and for all citizens and the fish and wildlife of this state.

Best regards,


EON’s 62 videos on YouTube helped spread the word & documented the grassroots movement

EON’s 62 videos onYouTube helped spread the word & documented the grassroots movement

EON’s YouTube Channel Stop the Spray playlist is here

A PDF copy of the Court of Appeal’s ruling is here.

If you like EON’s work, you can support it, whatever your budget level, here.

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