Blowin’ in the wind (continued)

He also gets conspiracy-minded on the topic of blueberry growers being targeted: "I believe that the environmental groups have an agenda to end all spraying completely. This move is a Trojan horse, I think. I’m not saying it’s premeditated, but what was clear when they visited with us is they didn’t have a clue how and why we do what we do." After reiterating that the levels of pesticides found in BPC drift studies are extremely low, he comes back to his original point. "I believe that what this is really going to be about is to try to end the use of pesticides altogether."

Feldman, who as the head of a group called Beyond Pesticides might be viewed as, well, an advocate of ending pesticide use, disagrees. "We’re really not trying to do anything other than enforce the intent and spirit of laws that are intended to protect the environment," he says, adding that the Trojan-horse argument is a standard maneuver.

"To the extent that organizations call for better enforcement of the law, it’s viewed as anti-agriculture by those utilizing chemical-dependent methods."

Kratka agrees. "We initiated talks with Wyman because we wanted to start bringing the rest of the industry along with Cherryfield without having to resort to litigation," he says, "but Wyman’s left us no choice. They were very clear about the fact that they don’t think they need Clean Water Act permits to do this spraying and they won’t apply for them, and they’re not going to switch to ground spraying, so we felt we had no choice but to take the next step."

Flanagan, as you might expect, doesn’t have much good to say about Cherryfield Foods, although he’s sympathetic on the topic of legal troubles. He suspects their decision to abandon aerial spraying has something to do with a recent antitrust decision in which blueberry growers were found guilty of price-fixing. Flanagan believes that Cherryfield just didn’t want to deal with the American court system, and he doesn’t either. "We were all extremely bitter about how the US legal system worked," Flanagan says, adding that he’s happy about recent class-action reforms that passed through Congress. "I don’t think he thinks he can go to court and win. We don’t have any choice," since unlike Cherryfield, which is owned by Canadians, Wyman is an American company (with Canadian subsidiaries).

"The fact that the Cherryfield Foods people agreed to go to boom sprayers creates a lot of momentum" for environmental groups, Flanagan says, but "why did this emerge in Maine, in the blueberry business, especially after we’ve just been bloodied terribly by this other frivolous lawsuit?"

His answer is that environmental groups see the blueberry industry as weakened by the class-action suit and therefore ripe for another court case, which may explain why Wyman invited two representatives of the American Farm Bureau, a heavyweight agribusiness lobbying group, to attend the November 18 meeting between Wyman representatives and delegates of the citizen groups.

"We were quite surprised to see the general counsel for the American Farm Bureau" at the meeting, Kratka recalls. The AFB’s interest is a sign that the aerial-spraying question is getting national traction, and that industry is mobilizing.

"The underlying implication is that this could have huge precedent for the whole country," Davis says, "and they’re really scared."

Asked whether the Farm Bureau will get involved if there is a court case, Flanagan says, "Yes, we expect they will. We expect quite a bit of help. We still hope to have a meeting of the minds and avoid a lawsuit, but we aren’t going to stop aerial spraying." He’s also had calls from agricultural interests across the country, asking for intervenor status.

"This is a major national issue. It really doesn’t have anything to do with Cherryfield Foods or Wyman," Flanagan says. "The environmental community was just looking for a guinea pig to take the Clean Water Act and EPA/FIFRA issue to court on" in a specifically agricultural context. "I don’t know this for sure," he goes on, but the American Farm Bureau is watching things closely, and he says "this is their take on why us."

The question of precedent-setting isn’t new, though, and this isn’t the first time Wyman has been involved in it. Representatives of the company have testified previously in opposition to proposed spraying bans, including at a 2000 BPC hearing during which Wyman’s Fred Olday expressed concerns about "the possible precedent-setting nature" of a proposal to ban aerial spraying near the house of a Unity, Maine, child suffering from chemical sensitivity. A lawsuit forcing Wyman to halt aerial spraying on all of its land would clearly be a much stronger precedent, and the company shows no signs of being as amenable as Cherryfield was.

Although he figures some national environmental groups will be monitoring the lawsuit (if the dispute ends up in court), Kratka says the sense of impending precedent is largely coming from the industry. "If anyone is seeking a big precedent over this, it appears to be Wyman and the American Farm Bureau," he says. "There’s no question that if we’re successful, this would be an important precedent, but that’s not why we’re bringing the case. We’re bringing the case because there’s a lot of unnecessary and possibly harmful pollution in Maine that people are concerned about."

Kratka wants to stay focused on the immediate issues on the ground in Washington County. "We’re not involved because of some big overarching theoretical legal principle," he says. "We would not be bringing this case if we didn’t think there were a real problem going on in Maine." In the end, he says, "If Wyman’s position is the only way they can stay in business is to violate the Clean Water Act, that’s not a very good answer for anybody."

Right now, all parties seem fresh out of satisfactory answers. "We don’t really want to be the guinea pig here for this fight over the Clean Water Act and the EPA and FIFRA," Flanagan laments. "We have an interest, but we don’t want to be the lead dog."

It looks like he may not have a choice.

Alex Irvine can be reached at airvine@phx.com