Judge affirms denial of bio-control petition

SANDPOINT — A district judge is affirming the Idaho State Department of Agriculture’s denial of a proposal to utilize biological controls to combat Eurasian milfoil in the Pend Oreille basin.

Lake Pend Oreille Waterkeeper petitioned ISDA last year to augment its rules to allow for a variety of bio-controls including natural predators, parasites or pathogens, but the department declined to do so.

In particular, ISDA declined to amend its rules to allow for weevil stocking because it involved reintroducing harvested milfoil into a body of water, which is against the state’s noxious weed law.

Under the LPOW proposal, weevils would be placed on the harvested milfoil and the plants would be reintroduced in an attempt to boost the population of weed-consuming insects.

Waterkeeper persisted and filed a petition for judicial review, arguing that ISDA’s denial of its rule-making effort was unreasonable, arbitrary and capricious.

Second District Judge Jeff Brudie heard oral argument on the matter in January and issued a written ruling on the petition on March 15.

Brudie said it was not within the court’s authority to determine whether it was allowable to transport invasive aquatic weeds in order to perform research or to beat back milfoil infestations. As a result, Brudie said he could only concern himself with whether the department acted unfairly in denying the rule-making petition.

“Based on the record before it, this Court is unable to find ISDA acted in an unreasonable, arbitrary or capricious manner in denying LPOW’s Petition,” Brudie said in his ruling.

Brudie held that the purpose of the noxious weed law is to prevent the movement of aquatic invasive species and allowing plants to be reintroduced would be contrary to the law’s intent.

Waterkeeper further argued that ISDA disregarded biological methods of weed control.

“The Court is not persuaded,” said Brudie.

Brudie noted that ISDA has a record of using biological controls when they’re shown to be effective. The ISDA also references the topic of biological controls in its long-term statewide strategic plan for controlling exotic milfoil.

Waterkeeper also maintained that its constituents’ substantial right to clean water was prejudiced by ISDA’s denial, although Brudie held that the group was unable to show it had any substantial right beyond the right to petition ISDA for a new rule.

Shannon Williamson, LPOW’s executive director, said the group was disappointed by Brudie’s ruling, but is not fazed or daunted.

Williamson admitted that winning the case was a long shot given the court would have to give great weight to ISDA’s determinations. However, she said the group is disheartened by the narrow focus of ISDA’s analysis.

Waterkeeper advocated for biological control research and implementation of all potential agents.

“The ISDA chose to focus their cause for denial on the logistics surrounding one particular method, the milfoil weevil, and we feel that the Judge’s rationale for upholding their denial of our Petition was misplaced,” WIlliamson said in a statement.

Waterkeeper said it intends to address the “real crux of the problem” — the noxious weed law. The group acknowledges it will be a difficult undertaking, but is optimistic that it can meaningfully engage lawmakers  to underscore the importance of a diverse approach to controlling aquatic invasive species.

Williamson said Waterkeeper’s constituents have demonstrated they are heavily invested in supporting alternatives to herbicides through advocacy and fundraising.

“LPOW is committed to working on behalf of these constituents, we’re committed to clean water and we’re committed to seeing this through,” said Williamson.