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Edna M. Williams
Petitioner
in propria persona
P.O. Box 8023
Santa Cruz, CA 95061
(831)471-9094
UNITED STATES DISTRICT COURT
NORTHERN CALIFORNIA DISTRICT
Edna Williams, Aubrey Belgard, Marilyn Garrett,
Petitioners/Plaintiffs
join with
)
)
)
)
Ed Porter, Jeff Haferman, Tony Madrigal,
)
Randy S. Baker, David Miller, Elsa Dooling,
)
Jacquelyn K. Griffith, and Janis Knepp
)
Petitioners/Plaintiffs
)
)
vs.
)
)
CALIFORNIA DEPARTMENT OF FOOD
)
AND AGRICULTURE (CDFA), A.G. KAWAMURA,)
in his Capacity as Secretary of CDFA, NANCY
)
LUNGREN, in her capacity as Deputy Secretary of
)
Public Affairs of CDFA, CALIFORNIA
)
DEPARTMENT OF PESTICIDE REGULATION
)
(CDPR), MARY-ANN WARMERDAM, in her
)
capacity as Director of CDPR, UNITED STATES
)
DEPARTMENT OF AGRICULTURE (USDA),
)
HELENE R. WRIGHT, in her capacity as the
)
Director of Plant Protection Quarantine for the state )
of California, and DOES 1-300
)
Respondents/Defendants
Case No. 07-05587
AMENDED
COMPLAINT
RENEWAL OF
PETITION FOR
TEMPORARY
RESTRAINING
ORDER AND
PETITION
FOR WRIT
OF MANDATE
AND INJUNCTIVE
RELIEF
1
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Comes now Petitioners, in propria persona, pleading this Court as this matter is
2
so extremely important to them and their communities and the People of the State of
3
California that failure to act will likely result in substantial irrevocable harm.
4
Petitioners join in pleading the court for a temporary restraining order for
5
Defendants to immediately halt all aerial spraying of pesticide-pheromone-preparations
6
in Monterey County and Santa Cruz Counties.
7
Petitioners request a Writ of Mandate setting aside Defendant CDFA’s Notices of
8
Exemption filed with the California State Office and Planning Research, as well as any
9
other state and federal regulatory agents as such “Notices of Exemptions” are founded on
10
a fallacious “State of Emergency” regarding the organism known as the Light Brown
11
Apple Moth (LBAM).
12
Petitioners request a preliminary injunction and order to show cause as Petitioners
13
request a complete halting of Defendant’s seriously misguided approaches to “eradicate”
14
the LBAM.
15
Petitioners plead the court for any and all appropriate and injunctive relief as
16
respondents have not only failed to perform their proper functions as public officials, they
17
have acted in an egregious manner and they are currently planning, and engaging in
18
actions that pose an immediate threat to the health and safety of the People of the State of
19
California, most notably the People of the Counties of Monterey and Santa Cruz; and, if
20
not immediately restrained, may well cause irreparable and ongoing egregious harm.
21
22
2
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
IDENTIFICATION/ALLEGATIONS OF PARTIES
2
Petitioner Haferman was appointed Vice-Mayor of the City of Monterey in
3
January of 2007, and currently serves in the capacity of Vice-Mayor of the City of
4
Monterey.
5
6
Petitioner Jeff Haferman is a resident of the City of Monterey, in the County of
Monterey, in the State of California.
7
Petitioner Haferman is an elected official in the City of Monterey.
8
Petitioner Haferman was elected to a 4-year term as a City Councilperson in
9
November of 2004.
10
Petitioner Haferman has a Ph.D. in Mechanical Engineering.
11
Petitioner Ed Porter is a member of the Santa Cruz City Council; he has served in
12
this capacity since 2000. He is a teacher at Santa Cruz High School; he has served in this
13
capacity since 1980. He is seriously concerned that the legal rights of Santa Cruz
14
residents may be violated by planned LBAM aerial sprays.
15
Petitioner Tony Madrigal is a member of the Santa Cruz City Council.
16
Petitioners Ed Porter and Tony Madrigal are residents of Santa Cruz County.
17
Petitioner David Miller resides in the City of Santa Cruz, in the County of Santa
18
19
20
21
Cruz in the State of California.
Petitioner Randy S. Baker, MD is a long-term resident of Santa Cruz County. He
is a medical doctor licensed to practice in the State of California.
Petitioner Jacquelyn K. Griffith, Ph.D. is a resident of Santa Cruz County.
3
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
Petitioners Edna Williams, Aubrey Belgard and Marilyn Garrett are residents of
the County of Santa Cruz, in the State of California.
3
Petitioner Elsa Dooling is a resident of Monterey County.
4
Petitioner Janis Knepp is a resident of Monterey County. She has been a
5
homeowner and has resided in the City of Monterey for twenty (20) years. She was a
6
teacher in the Monterey School District for eighteen (18) years.
7
Defendant and Respondent California Department of Food and Agriculture
8
(CDFA) is an agency of the State of California responsible to the People of the State of
9
California for, among other things, ensuring public health and safety along with
10
appropriate guidelines for overseeing food production and agriculture practices.
11
Defendant and Respondent A.G. Kawamura is the Secretary of CDFA; he is, in
12
his official capacity as such, responsible for administering CDFA in accordance with
13
State and Federal laws.
14
Defendant and Respondent Nancy Lungren is the Deputy Secretary of Public
15
Affairs for CDFA and is responsible for providing timely, truthful and accurate
16
accessible information for the public.
17
Defendant and Respondent California Department of Pesticide Regulation
18
(CDPR) is the regulatory office entrusted with “assessing human health risks” from
19
pesticides and lawfully regulating the use of pesticides and pesticide-like compounds.
20
21
Defendant and Respondent Mary-Anne Warmerdam is the Director of Pesticides
and Environmental Program of the CDPR.
4
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Defendant and Respondent United States Department of Agriculture (USDA) is
2
the federal government’s regulatory body entrusted with promoting and protecting the
3
agricultural resources and food sources in the US as well as protecting the public from
4
harm from agricultural hazards and enforcing informed policy regarding same.
5
Defendant and Respondent Helene R. Wright is the official California State Plant
6
Protection and Quarantine (PPQ) Director for the USDA, under the Animal Plant and
7
Health Inspection Services (APHIS), and is responsible for plant quarantine measures.
8
9
JURISDICTION AND VENUE
10
This Court has jurisdiction over the USDA and all other Respondents as well as
11
the areas known as Monterey County and Santa Cruz County of the State of California.
12
Petitioners seek both preventative relief and injunctive relief.
13
Petitioners respectfully requests these extraordinary measures for relief as they
14
have no other remedy at law and, without swift proper action, irreparable harm is likely
15
to be done to the inhabitants and the environment of the Central Coast of California.
16
In addition, Petitioners are aggrieved by Respondents failure to act in a truthful
17
and lawful manner as public servants and protectors of the State of California and the
18
United States of America. And, as Petitioners contend that Respondents have violated
19
their civil rights, this Court is the appropriate venue to provide relief.
20
Petitioners are not attorneys. Yet, Petitioners have such extreme concerns that
21
they have been forced to resort to in propria persona pleadings as they have no other
22
recourse and they wish to exercise their constitutional rights to redress and due process.
5
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
2
Respondents freely admit that they have had full knowledge that the so-called
3
Light Brown Apple Moth (LBAM), a native species of Australia, was present in the state
4
of California in March and April of 2007.
5
Respondents announced, on or about September 21, 2007, approximately six (6)
6
months after having full knowledge that the so-called Light Brown Apple Moth (LBAM)
7
was present in the state of California, that an imminent threat to national security was
8
posed by the moth.
9
Based on a fallacious notion that a moth species, which is not regarded as
10
particularly problematic anywhere in the world, poses an imminent danger to the US and
11
California, Respondents surreptitiously, and perhaps even maliciously, conspired and
12
circumvented all appropriate regulations with a false declaration of an emergency, or
13
urgency, to eradicate the LBAM.
14
Respondent CDFA, after demands, threats and quarantines by Respondents
15
USDA and Wright, announced that they intended to aerially spray an untested and unsafe
16
microencapsulated pesticide/pheromone admixture preparation, which has never been
17
used in the current combination nor has any portion of the admixture, or the microcapsule
18
that it is enclosed it, been properly tested for any type of application whatsoever.
19
Moreover, on no occasion has any pheromone-pesticide ever been considered effective,
20
desirable or approved for aerial spraying in any locations.
6
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Respondents are colluding, in an ongoing manner, in an assault and a constant
2
threat of terror in the form of improperly regulated and unapproved aerial pesticide
3
dumping that constitutes a human experiment, which is unethical, immoral and unlawful.
4
Said aerial spraying has commenced in Monterey County.
5
Santa Cruz County was scheduled to be subjected to aerial spraying, for six
6
consecutive nights in a row commence on Sunday, November 4, 2007. However, just
7
hours before the intended commencement at 8 pm on November 4, 2007, Respondent
8
CDFA informed, via e-mail, to those on certain e-mail lists, that despite the so-called
9
“emergency,” which CDFA’s counsel argued emphatically on November 2, 2007, no
10
11
12
such spray would occur.
Attached as Exhibit A is a copy of CDFA’s e-mail notification to Petitioner
Williams.
13
At a minimum, respondents have a duty to inform residents of the intended spray
14
area and the exact nature of the admixture and any and all precautions, especially as they
15
are directing all residents to refrain from going out-of-doors from 8 pm to 5 am for nearly
16
a week straight.
17
However, rather than notifying 96 hours prior to spraying, as required by
18
California Food and Agricultural Code Section 5775, Respondents now indicate that
19
Santa Cruz County residents will not actually be notified until the morning after the aerial
20
spray missions and/or perhaps CDFA will announce by 5 pm where they intend to
21
aerially spray untested pesticides that evening.
7
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
3
In other words, Petitioners and other residents are forced to be on a ‘red alert’
type status everyday as they might be sprayed that evening.
In addition, Petitioners and many more Monterey County Residents have
4
experienced instances wherein CDFA aerially sprayed the pesticide outside the
5
announced zones, and, even, on unannounced days with the unreasonable reason that the
6
weather happened to be nice. Some of these deleterious deviations have been posted on
7
the CDFA’s website, usually well after the fact, whereas others have not.
8
9
Respondent CDFA plans to continue bouts of nearly week-long aerially spraying
of ill-defined areas of Santa Cruz County as well as Monterey County, and perhaps
10
nearly a dozen other counties in central California, with this regular frequency schedule
11
consisting of six consecutive nights of aerial pesticide spraying, largely in highly
12
residential areas, repeated at regular 30 day intervals, commencing again in early 2008
13
and continuing until 2010 or perhaps even longer, i.e. 2017 or 2018.
14
Respondents claim an imminent threat to national security and welfare because
15
they have allegedly identified several specimens of a moth from Australia, known as
16
Epiphyas postvittana or the “Light Brown Apple Moth” or LBAM.
17
Respondent USDA and Ms. Wright have claimed that the moth is a threat.
18
Yet, when questioned directly, Respondents USDA and CDFA truthfully report
19
that there has been no crop damage whatsoever due to the LBAM, nor is there any reason
20
to foresee any such damage as even in it’s native habitat, the LBAM has been responsible
21
for little or no crop damage.
8
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
3
4
5
6
7
In addition, Respondents grossly exaggerate the potential economic loss as well as
the likelihood that the moth will spread.
In Australia, minimal damage from the moth occurs; in fact, the economic losses
are only the result of quarantines.
Defendants’ assertion that the moth is on the verge of a staggering population
explosion are completely unfounded.
Attached as Exhibit B is the sworn Declaration of Daniel K. Harder, Ph.D.
8
Executive Director of the University of California at Santa Cruz’s (UCSC) Arboretum,
9
which is home to one of the largest collections of native Australian plants.
10
Doctor Harder holds a doctorate degree in Botany from the University of
11
California Berkeley. He is an Adjunct Professor of Ecology and Evolutionary Biology at
12
UCSC, in addition to his position as the executive director of the Arboretum.
13
Petitioners contend that the immediate discontinuation of aerial spraying will
14
result in no substantial damage, other than the aforementioned economic losses that could
15
be addressed in an entirely different manner.
16
The LBAM is not now, nor has it ever been, nor is it likely to pose even a
17
moderate threat to crops in California. This is especially true as we head into the winter
18
months, which is likely to be accompanied by a natural decline in LBAM populations.
19
20
21
22
Pheromone-attractacide-pesticide combinations have not been shown to be
particularly efficacious when used as the only method of insect control.
According to the United States Environmental Protection Agency, Lepidopteran
Pheromones: Tolerance Exemption, a copy of which is attached here as Exhibit C, aerial
9
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
application is not an approved or safe method for this type of pesticide; i.e. not amongst
2
the approved exemptions even in the case of a true emergency. (page 3 of Exhibit C)
3
Moreover, as stated on the top of page 4 of Exhibit C, the microcapsules, which
4
has never been tested, will likely persist in the environment and they will likely not
5
release the pheromone-pesticide in amounts substantial enough to even be effective.
6
Abusing their discretion, and acting under color of authority, Respondents have
7
intimidated, threatened and conspired to interfere with the performance of the duties of
8
the elected officials as well as the duties delegated to duly appointed qualified
9
individuals, including, but not limited to, Ken Corbishly, Santa Cruz County Agricultural
10
11
Commissioner.
Respondents have acted in concert to deprive citizens of due process and to
12
circumvent all authorities pertaining to actual pesticide regulation and environmental
13
assessment and protection measures by declaring a fallacious state of emergency and a
14
pretense of a ‘pheromone product/preparation’ that they falsely claim is not a pesticide.
15
In so doing, respondents have acted in a fraudulent manner, by intentionally
16
mischaracterizing the facts, which has resulted in substantial harm to Petitioners.
17
Moreover, without the requested TRO, Respondents will continue with these actions and
18
will likely cause irreparable harm.
19
Respondents have abused their discretion and power and acted with wanton
20
disregard for the health, safety and rights of the people as well as failed to prevent harm.
21
Furthermore,, Respondents have falsely presumed the authority to impose a type
22
of martial law with ongoing threats of trespasses and unreasonable restrictive curfews.
10
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
3
4
Respondents are threatening and committing an ongoing nuisance as well as an
assault on the air, water, food, and environment that we all rely on.
By failing to properly inform the public, at a minimum, respondents have acted in
a manner that harms the public.
5
Furthermore, continued aerially spraying will cause irreparable harm – once it is
6
sprayed there is no method to retrieve it or rectify the deleterious effects of the pesticide
7
preparation on humans, animals or the environment.
8
9
Said pheromone-pesticide-preparation is an untested and unapproved admixture
of micronized chemicals supposedly design to attract male moths in a manner mimicking
10
a pheromone; however, the two chemical combination referred to as a ‘pheromone’ is
11
merely a chemical admixture of compounds similar to those produced naturally by
12
LBAM. Moreover, the ratio of the chemicals is not the same ratio of those chemicals
13
naturally produced by LBAM as an endogenous pheromone.
14
Respondents voluminous (part 2 of 3) response to Petitioner’s original complaint
15
contains a Declaration by James E. Warren, PhD, of the USDA. Dr. Warren clearly states
16
on page 4, lines 17-18:
17
“The standardized toxicity studies were conducted using the active ingredient or
18
pheromone and not the microencapsulated beads.”
19
This micro-encapsulated admixture has never been tested, is not appropriate for
20
aerially spraying and is, likely, the least effective method for contending with the alleged
21
emergency. The micronized technology may cause damage to human respiratory systems,
22
eyes and mucous membranes, and may persist in the environment indefinitely.
11
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
While technically the pheromone-like chemical is used as an “attractacide1,” i.e.
1
2
to attract male moths and interrupt the breeding cycle, nevertheless, particularly in a
3
micronized encapsulated form delivered in an aerial spray, it functions as a pesticide, and
4
may well have many other biocidal, i.e. life-killing and life and health impairing effects;
5
therefore, it should be properly tested, regulated and controlled as any other pesticide.
6
Respondents, individually and as a group, have falsely claimed variously that it is
7
not a pesticide, that it is not harmful and that it is imperative due to the concocted state of
8
urgency/emergency.
9
The pheromone-attractacide-pesticide has only previously been used in
10
combination with traps, or sticky traps. And, for that purpose, it is often combined with
11
permethrin, a common highly effective insecticide used specifically for this purpose.
12
13
Moreover, pheromone-pesticide-products have never been sprayed aerially nor
have they ever been tested encapsulated in a micronized form in human or animal studies.
14
Therefore, Respondents are essentially engaging in an experiment on the
15
residential areas of Monterey and Santa Cruz Counties, and this is an atrocity and an
16
assault under color of authority.
Furthermore, according to Respondent USDA’s own APHIS “Mini Risk
17
18
Assessment, Light brown apple moth, Epiphyas postvittana (Walker), [Lepidoptera:
19
Tortricidae] by Robert C. Venette, Erica E. Davis, Michelle DaCosta, Holly Heisler, and
“Control of Light Brown Apple Moth (Lepidoptera: Tortricidae) Using an Attracticide”
Suckling D.M.; Brockerhoff E.G., Journal of Economic Entomology, Volume
92, Number 2, April 1999 , pp. 367-372(6)
1
12
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Margaret Larson of the Department of Entomology, University of Minnesota, in St. Paul,
2
MN, published on September 21, 2003, spraying is actually not at all an advisable
3
strategy for controlling the Light Brown Apple Moth.
4
The USDA’s own assessment of LBAM states:
5
“E. postvittana is difficult to control with sprays because of its leaf-rolling
6
ability, and because there is evidence of resistance due to overuse of sprays.”2
7
(Geier and Briese 1981)3
8
Note: E. postvittana is the abbreviated binomial taxonomic name for LBAM.
9
As there is no evidence to support either Respondents assertion of an emergency
10
or their assertion that aerial spraying is a viable and safe approach to accomplish the
11
dubious goal of species eradication, Respondents have breached their duty to serve the
12
public and protect both the laws and the natural and agricultural resources of the US and
13
the State of California; and, they have engaged in fraud and conspired to violate civil
14
rights and have violated Petitioner’s rights to due process.
15
16
Respondents have claimed an emergency status based on falsehoods and said
emergency has purportedly entitled them to circumvent all ordinary Environmental
2
http://www.aphis.usda.gov/plant_health/plant_pest_info/pest_detection/downloads/pra/ep
ostvittanapra.pdf.
Geier, P., and D. Briese. 1981. “The light-brown apple moth, Epiphyas postvittana
(Walker): a native leafroller fostered by European settlement.,” pp. 131-155. In R.
Kitching and R. Jones [eds.], The Ecology of Pests. CSIRO, Melbourne,
Australia
3
13
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Impact Reviews as required by the California Environmental Quality Act (CEQA) and
2
the Environmental Protection Agency (EPA).
3
Specifically, CEQA Article 18. Statutory Exemptions section 15269(a) is the
4
authority that Respondent’s rely on, yet this is incongruous with the statute that refers to
5
disaster stricken areas. In other words, a minor increase in a moth species is not a disaster
6
stricken area by any stretch of the imagination; this type of exemption would refer to
7
disasters of the magnitude of Hurricane Katrina.
8
Respondents claim that they can aerially spray the pheromone-pesticide product
9
by relying on exemptions granted during true states of emergency as set forth under
10
Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and
11
under EPA regulations at 40 CFR Part 166 (Ref 10).
12
However, in actuality, the EPA has not approved pheromone products for chronic
13
or sub-chronic, i.e. repeated use, or for aerial spraying, or in any preparation, micronized
14
or aerially delivered, even in times of true emergencies, which this clearly is not.
15
In addition, the EPA has clearly stated that it’s exemptions for moth pheromones,
16
even for true emergencies, which this is not, does not apply to any additional ingredients
17
that might be added to the admixture or any encapsulation or micro-encapsulation
18
delivery methods.
19
20
21
As stated in EPA’s Federal Register: August 30, 1995 (Volume 60, Number 168)]
Page 45060-24
Lepidopteran Pheromones: Tolerance Exemption
14
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
“For pheromone products, especially those directly applied to food, one problem
2
has been a lack of subchronic toxicity studies and an estimate of the actual
3
pheromone residues occurring with use. Some pheromone uses in solid matrix
4
dispensers have been registered based on the low probability of exposure
5
justifying the waiver of the subchronic toxicity studies, namely the 90-day
6
feeding, the developmental toxicity and immunotoxicity studies.
7
However, the [US Environmental Protection] Agency has held that sprayable
8
formulations or other modes of application that may increase the likelihood
9
of human exposure would still require the subchronic toxicology studies.”5
10
(bold emphasis added)
11
12
In addition, the EPA report reported the following regarding the
13
experimental and completely untested delivery system called a “microcapsule,”
14
which is essentially a minute plastic-like compound encasing the synthetic
15
pheromone-attractacide-pesticide:
16
“ Studies examining the volatilization of a pheromone from a
17
microcapsule indicates that about 70 percent of the pheromone remains
18
after 30 days. These results indicate the pheromone is released at a
19
slower rate than anticipated. The studies show that only a small
20
proportion of the microcapsules actually release any pheromone or only
21
a portion of the total pheromone loaded into the capsule is capable of
22
ever being released. These laboratory studies indicate a potential for
23
pheromone residues to occur in the absence of any biological or
24
environmental factors.”6
4
5
http://www.epa.gov/fedrgstr/EPA-PEST/1995/August/Day-30/pr-388.html
http://www.epa.gov/fedrgstr/EPA-PEST/1995/August/Day-30/pr-388.html
15
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
As the EPA indicates: (1) the pheromone, which Respondents claim is the only
2
option to eradicate the LBAM, may well not even be released by the microcapsules in an
3
efficacious amount to deter the LBAM male moth from finding a female to mate with, i.e.
4
performing its ‘attractacide’ thereby rendering the distribution of the pheromone-
5
pesticide preparation totally useless in controlling the population of the LBAM; and (2)
6
the persistence in the environment of the micro-encapsulated pheromone-pesticide is
7
likely to be long-lasting in the environment, with possible irrevocable deleterious results.
8
CAUSES OF ACTION
9
I.
10
This action is brought under the authority of § 1985 and § 1986 of title 42,
11
Chapter 21, subchapter I of the United States Code.
12
Respondents, acting together, under color of authority have violated the letter and
13
the spirit of § 1985 of title 42, Chapter 21, subchapter I of the United States Code,
14
subsection (1), which reads:
15
“Preventing officer from performing duties
16
If two or more persons in any State or Territory conspire to prevent, by force,
17
intimidation, or threat, any person from accepting or holding any office, trust, or
18
place of confidence under the United States, or from discharging any duties
19
thereof; or to induce by like means any officer of the United States to leave any
20
State, district, or place, where his duties as an officer are required to be
21
performed, or to injure him in his person or property on account of his lawful
22
discharge of the duties of his office, or while engaged in the lawful discharge
6
http://www.epa.gov/fedrgstr/EPA-PEST/1995/August/Day-30/pr-388.html
16
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
thereof, or to injure his property so as to molest, interrupt, hinder, or impede him
2
in the discharge of his official duties; “
3
4
By threatening the Santa Cruz County Board of Supervisors, on the 16th day of
5
October 2007, Respondents Helene Wright and USDA, in concert with Respondents
6
CDFA and Kawamura violated subsection (3) as well as subsection (1) of § 1985 of title
7
42, Chapter 21, subchapter I of the United States Code.
8
9
Respondents not only interfered with the elected and designated officials of the
Counties of Monterey and Santa Cruz, they also are imposing restrictive curfews that will
10
make it impossible for law enforcement officials and other officials to perform their
11
essential functions in addition to violating the constitutional right to assembly.
12
Respondents have thwarted due process by proclaiming a fallacious emergency.
13
And, said ‘emergency’ has justified unlawful intimidation of the duly elected local
14
officials of Monterey and Santa Cruz County.
15
Respondents, acting together, under color of authority have violated the letter and
16
the spirit of § 1986 of title 42, Chapter 21, subchapter I of the United States Code, which
17
makes it unlawful to neglect to prevent harm, reads, in part:
18
“Every person who, having knowledge that any of the wrongs conspired to be
19
done, and mentioned in section 1985 of this title, are about to be committed, and
20
having power to prevent or aid in preventing the commission of the same,
21
neglects or refuses so to do, if such wrongful act be committed, shall be liable to
22
the party injured, or his legal representatives, for all damages caused by such
23
wrongful act, which such person by reasonable diligence could have prevented;
24
and such damages may be recovered in an action on the case; and any number of
17
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
persons guilty of such wrongful neglect or refusal may be joined as defendants in
2
the action”
3
4
5
6
In essence Respondent entities and individuals have knowingly allowed and
participated in harming rather than preventing harm as the statute requires.
At a minimum, Respondents have a duty to inform. And, Respondent Lungren not
7
only freely admits that Respondents have not complied with their obligation, she derided
8
Petitioner Williams and wrongly blamed the citizens for her failure to perform her duty
9
and thereby creating a situation wherein harm to the public is not only likely, it is entirely
10
foreseeable.
11
II.
12
13
14
Respondents USDA and Wright have violated Petitioner’s rights articulated in
section 1 of the XIVth Amendment to the United States Constitution.
15
Respondents have abridged the privileges of the citizens and have colluded with
16
all other Respondents threatening and depriving Plaintiffs liberty and property, without
17
due process of law, and interfering with the right to be secure in one’s person and
18
property.
19
Respondent USDA has unconstitutionally demanded unreasonable acts by
20
Respondent CDFA; Respondent CDFA has threatened unreasonable actions, allegedly on
21
the authority of Respondents USDA and DCPR, which violates the XIVth amendment and
22
the IVth amendment to the United States Constitution.
18
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
III.
2
Under the authority of the Ist Amendment to the United States Constitution,
3
Petitioners are entitled to redress grievances against the government and Petitioners have
4
the right to a reasonable expectation of the freedom to assembly, even after 8 pm.
5
Petitioner Knepp alleges Respondents have forced her to stay inside her house
6
from 8 p.m. until 5 a.m. and to cover much of her outside property from an aerial spray.
7
She had to leave town and was deprived of her property and security as a result of this
8
aerial spraying of a pesticide.
9
Respondents have shown contemptuous disregard for the unreasonable nature of
10
their curfew, nor is such a curfew in concordance with Respondent’s allegation that the
11
pesticide, which is called a pesticide by the EPA, is without any hazards to humans.
12
By declaring a false state of emergency based on a ‘national security threat,’
13
Respondents have, in fact, imposed upon citizens something that is closely akin to martial
14
law and an act of war, based on some bogus notion that a moth species is a threat to
15
national security.
16
17
18
IV.
Emanating directly from the false state of emergency that Respondents allege,
19
Respondents have violated Petitioners rights to due process as the standard EPA review
20
and the conduction of Environmental Impact Reports (EIR) as required by the California
21
Environmental Quality Act (CEQA) was circumvented.
19
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Respondents claim that they will complete an EIR, one to two years after the
2
irreparable discharge of untested chemicals in an untested and unapproved
3
microencapsulation has begun, and such assertions shows a contemptuous attitude for due
4
process, the duties of other public officials and towards the duly enacted legislation of the
5
State of California.
6
Respondents freely admit that their aerial pesticide spraying campaign in the
7
Counties of Santa Cruz and Monterey, as well as adjacent counties, is a long term plan to
8
attempt to eradicate a species that has harmlessly existed with their knowledge in
9
numerous counties of California for more than six months, yet Respondents define the
10
11
LBAM as an exotic pest requiring emergency measures based on overinflated conjecture.
Respondents actions does not comport with the specific requirements set forth in
12
Title 14. California Code of Regulations, Chapter 3. Guidelines for Implementation of the
13
California Environmental Quality Act, Article 18. Statutory Exemptions, Section 15269.
14
Emergency Projects, which states:
15
“The following emergency projects are exempt from the requirements of CEQA.
16
“(c) Specific actions necessary to prevent or mitigate an emergency. This does
17
not include long-term projects undertaken for the purpose of preventing or
18
mitigating a situation that has a low probability of occurrence in the short-term.”
19
(bold emphasis added)
20
While there is economic loss due to the quarantine, there is no emergency nor is there a
21
situation wherein actions are necessary to prevent or mitigate an emergency.
22
23
20
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
3
4
VI.
Petitioner Jeff Haferman, Vice Mayor of the City of Monterey, and Petitioners
Janis Knepp and Elsa Dooling, residents of Monterey County, allege assault.
Petitioner Dooling alleges that her health and well-being were assaulted when
5
untested pesticides were aerially spayed by Respondent CDFA on her home and
6
neighboring communities in September 2007 and again in October 2007.
7
8
9
Petitioner Dooling alleges that her right to free of assaults, such as being sprayed
with toxic substances has violated her health and her family.
Petitioner Knepp alleges that Respondents have been an ongoing nuisance and
10
assault on her person and violated her rights to be secure in her person and home with the
11
two (2) cycles of spraying in September and October 2007 as well as their stated
12
intention to return to continue aerially spraying for years to come, for nine (9) months of
13
every year, threatening her future security and property.
14
15
VII.
16
Petitioners Dooling, Knepp and Haferman allege nuisance.
17
Petitioner Dooling alleges that ever since the announcement of the LBAM
18
Emergency Eradication Program, her personal and professional lives have been greatly
19
impacted by the necessity to do endless amounts of research to answer all the questions
20
surrounding the safety of the eradication program.
21
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Petitioner Dooling alleges CDFA failed to answer very serious questions of safety
2
surrounding the use of chemicals in the aerial application of Checkmate OLR-F and
3
LBAM, thus she had to do the research herself to answer the questions; this process cost
4
her time and money and was and is still a nuisance. It has disturbed her way of life, her
5
job and impacted her ability to live comfortably in her home.
6
7
VIII.
8
Petitioner Knepp alleges that Respondents have threatened and deprived her
9
10
person and property, without due process and equal protection under the law, and
interfered with her right to be secure in her person and property.
11
IX.
12
13
Petitioners allege that aerial applications fall under the legal definition of a human
14
experiment under the California Health and Safety Code (CH&S) section 24170-
15
24179.5, and also falls under the legal definition of a drug, the Federal Food, Drug, and
16
Cosmetic Act [See Section 201(g)(1)].
17
18
Thus, the aerial applications of the pheromone-pesticide constitute human
pesticide and medical experimentation.
19
Attached as Exhibit D is the United States Environmental Protection Agency’s
20
“Expanded Protections for Human Studies Research” from the Pesticides: Science and
21
Policy section, which demonstrates that Respondents are violating established policy.
22
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
3
X.
Respondent Kawamura, in his official capacity as Secretary of CDFA, and in
4
concert with Respondents USDA and Wright, has failed to fulfill his obligations, and is
5
thereby failing to prevent harm as delineated in Chapter 9 of Part I of Division 4 of the
6
Food and Agriculture Code, Article 10, Section 6050, subsections (g) and (h) and Section
7
6050.1 subsection (b). This cause provides further elucidation of Respondent
8
Kawamura’s statutory obligation as a public official, the breach of said duty is also a
9
basis for the first cause of action.
10
11
PRAYER FOR IMMEDIATE RELIEF
12
13
WHEREFORE, Petitioners requests an immediate Temporary Restraining Order
14
and Preliminary Injunction, with an Order to Show Cause, a Writ of Mandate setting
15
aside the Notices of Exemption predicated on false emergencies.
16
Petitioners respectfully request immediately halting of any and all aerial spray
17
plans, at least until such time as reasonable demarcation of targeted areas, all chemicals
18
used in spraying, as well as the time and date of any and all such sprayings is clearly
19
elucidated and properly communicated to the citizens, as well as until such time as the
20
proposed chemical admixture to be aerially dispersed has been thoroughly studied and
21
appropriately deemed safe and effective for aerial spray and properly deemed the most
22
reasonable and cost-effective method to address the concerns regarding the LBAM.
23
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
Petitioners pray for this court to grant a Writ of Mandate, setting aside or striking
2
Respondent’s unlawful and unfounded Notice of Exemption, i.e. false emergency status
3
that is propped up to justify the unwarranted and unethical spraying of the population
4
with an untested pesticide and serves to deprive Plaintiffs of due process and equal
5
protection under the law.
6
Petitioners pray for this court to set aside Respondent’s threatening aerial
7
spraying plan, which is posing imminent danger to children, pregnant women, all
8
citizens, and the environment.
9
10
Petitioners respectfully pray for any and all additional remedies or relief deemed
appropriate by the Court.
11
12
13
14
24
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
Respectfully submitted,
3
4
______________________
5
Aubrey Belgard, Petitioner, pro se
6
7
8
I declare under penalty of perjury that the foregoing is true and correct to the best of my
9
knowledge.
10
11
12
Executed on this 5th day of November 2007, in Santa Cruz County, California.
13
14
_________________________________
15
Aubrey Belgard
16
25
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587
1
2
Respectfully submitted,
3
4
______________________
5
Marilyn Garrett, Petitioner, pro se
6
7
8
I declare under penalty of perjury that the foregoing is true and correct to the best of my
9
knowledge.
10
11
Executed on this 5th day of November 2007, in Santa Cruz County, California.
12
13
_________________________________
14
Marilyn Garrett
15
16
26
Williams, et. al v. CDFA, et. al.
Amended Complaint
Renewed Petition for TRO/Preliminary Injunction/Writ of Mandate
Case no. 07-05587