Hearing nears on LPOW petition

SANDPOINT — Oral arguments on Lake Pend Oreille Waterkeeper’s effort to compel the state to embrace the use of biological controls in combating Eurasian milfoil are set for Wednesday in Lewiston.

Jeff Brudie, a 2nd District judge with chambers in Nez Perce County, is hearing the case.

Lake Pend Oreille Waterkeeper calls the proceeding another critical step in the water quality watchdog group’s journey to add biological controls to the Idaho State Department of Agriculture’s arsenal of methods for controlling the aquatic noxious weed.

Waterkeeper filed a petition for judicial review last year, after the ISDA declined to revise its rules to allow for the use of weevils to devour milfoil infestations in the lake.

Groups in Bonner County have advocated the use of weevils for the last several years as an alternative to herbicides. Partners for Milfoil Control subsequently raised $150,000 to conduct a research to demonstrate the insects’ efficacy in beating back milfoil.

But ISDA blocked the project because it involved placing pieces of weevil-laden  Eurasian milfoil back into the water, which the state holds is expressly forbidden under Idaho’s noxious weed law.

Waterkeeper subsequently tried to have the state amend the noxious weed law to include the use of biological controls, but the group was rebuffed.

The group argues the agency misinterpreted the plain language of the state’s noxious weed law and disregarded its own goals regarding the use of biological controls. ISDA countered that it lacked permitting authority and harbored concerns about the use of weevils.

“The fact that the ISDA continues to focus their rationale for rejection of one type of biological control is beyond frustrating. We went to great lengths to ensure that our initial Petition was all encompassing with respect to various forms of biological control, including parasites and pathogens,” Shannon Williamson, executive director of LPOW, said in a statement.

ISDA has further argued that LPOW’s substantial rights had not been prejudiced by its decision. LPOW disagrees.

“LPOW’s constituents are prejudiced by ISDA because its decision to continue using herbicides to control noxious weeds directly relates to the purpose of LPOW as an organization, which seeks to defend the substantial and fundamental rights of its constituents to clean water,” Williamson said in an affidavit.

Counsel for ISDA do not dispute that biological controls have a role in noxious weed controls, but they have to be utilized under the right circumstances.

“It simply cannot risk further infestations by allowing the movement and/or introduction of viable noxious weeds into the very environment from which Idaho has sought to eradicate them, whether for research or for other purposes,” deputy attorneys general Angela Kaufmann and Sean Costello said in court documents.

Williamson said the group will lobby state lawmakers to bring changes to the noxious weed law if it does not prevail in court.

“This has been a long process and valuable learning experience. We don’t take the litigation lightly and only engage in this process when all other options have been exhausted,” said Williamson said in the LPOW’s statement.