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Commercial Fisheries News
Volume 33 Number 7
March 2006
Trial to begin in LIS lobster die-off case
CENTRAL ISLIP, NY – With March at hand and spring fishing on the horizon, most New England lobstermen are starting to think about getting their gear in the water. To the westward, though, three lobstermen have a March 1 date with a federal judge, and they’re looking forward to it.
More than five years ago, three lobstermen filed a federal lawsuit against the manufacturers of pesticides used around the New York metropolitan area during September and October 1999 in an effort to control the spread of the West Nile virus. The plaintiffs are James E. Fox and John H. Makowsky, both of New York, and Nicholas J. Crismale of Connecticut
The lobstermen claimed that the pesticides – Fyfanon ULV, which contains malathion; Scourge, which contains resmethrin; Anvil 10+10 ULV, which contains sumithrin; and the methoprene-based Altosid XR Extended Residual Briquets – were responsible for the virtual eradication of the Long Island Sound (LIS) lobster fishery in 1999 and 2000.
Almost exactly three years ago, a US District Court judge gave the case class action status. The judge ruled that the three lobstermen could represent essentially all holders of commercial lobster licenses that entitled them to fish in Long Island Sound and who suffered damages as a result of the application of the pesticides that began in September, 1999. That group could possibly number as many as 300 fishermen.
Jury trial
The case is now set to go to trial before a jury on March 1. With a witness list of nearly three dozen, including scientists and economists for both sides, the trial is expected to last three to four weeks.
Known as Fox v. Cheminova, the lawsuit asked for damages of at least $125 million for losses suffered by Connecticut and New York lobstermen who fish in the sound. The plaintiffs are asking for an undetermined amount of punitive damages on account of Cheminova’s outrageous conduct.
According to Erin Powers, a spokesman for the fishermen’s New Orleans-based law firm Jones, Verras & Freiberg LLC, the plaintiffs will produce as many as 20 witnesses in addition to the three fishermen, to support their case.
Some of the evidence will come from scientists who will testify on issues of the pesticide’s toxicity to lobsters, tide and current patterns in Long Island Sound, and dispersal of the pesticide in the water. There will also be testimony from economists about the value of the fishery that was destroyed.
Also to be resolved, Powers said, is the procedure by which fishermen who are members of the class of plaintiffs will be able to prove the amount of their damages if Fox, Makowsky, and Crismale win their case.
Pesticides, rain
Throughout the later part of the 1990s, lobstermen who set their gear in Long Island Sound grew accustomed, although not resigned, to high levels of lobster mortality during late summer and early fall. Scientists searching for the cause of those die-offs cited increasing water temperatures and reduced levels of dissolved oxygen in the sound as contributing factors.
Things changed radically in 1999, however.
Late in the summer of that year, governmental authorities in New York City, in Suffolk County on eastern Long Island, and in a number of municipalities bordering LIS, fearing that the mosquito-borne West Nile virus was a threat to public health, began an intensive effort to eradicate the insects. The effort included the aerial spraying of Fyfanon, aerial and truck spraying of Scourge and Anvil, and the placement of Altosid briquettes in drainage ditches and water courses.
One week after the pesticide applications began, the LIS region experienced torrential rains – the remnants of a tropical storm. About a week after that, the LIS lobster fishery was dead. Lobstermen blame the fishery’s collapse on the pesticides, but the manufacturers deny any responsibility.
While the question of liability will have to be settled at trial, no one disputes that the sound’s lobster fishery virtually collapsed in 1999 and was little improved in 2000. The New York Department of Environmental Conservation calculated the loss of revenue incurred by New York lobstermen who fished the sound at $9.25 million-$19.6 million in 1999 alone.
The Connecticut Department of Environmental Protection (CT DEP) reported that lobster landings from the sound dropped from 5.6 million pounds in 1998 to 3.7 million pounds in 1999 and to less than 1.7 million pounds in 2000.
Some regions suffered worse losses than others. According to CT DEP, in the fall of 1999, lobster landings at ports in the western-most part of the sound dropped 91 to 99 percent from their 1995-1998 averages.
Settlements
As badly hurt as the industry was, the question remains whether lobstermen will be able to recover their losses from the pesticide manufacturers. In October 2004, the federal district court on Long Island, NY approved settlements with all of the defendants except Cheminova.
Clarke Mosquito Control Products Inc. (manufacturer of Anvil 10 + 10 ULV), Aventis Environmental Science USA LP (successor to AgrEvo Environmental Health Inc., now Bayer CropScience LP, and manufacturer of Scourge), and Zoecon Corp. (manufacturer of Altosid XR Extended Residual Briquets) together agreed to pay damages of $3.75 million. That still leaves a lot damages to be collected from the remaining defendants, Cheminova Inc. and Cheminova Agro A/S.
Just how strong a case Long Island Sound’s lobstermen have remains to be seen. Late in 2004, scientists at the Long Island Sound Lobster Health Symposium in Stony Brook, NY appeared to conclude that the collapse of the sound’s lobster population wasn’t attributable to any one factor but was the result of a combination of environmental stressors. Those included low dissolved oxygen, unusually warm water temperatures, rapid turnover of the sediment-water interface, and heavy rainfall with extensive freshwater runoff.
In the plaintiffs’ favor, according to filings made by their attorney, Gladstone N. Jones III, are the facts that between 1988 and 1998, the US Environmental Protection Agency (EPA) repeatedly instructed Cheminova to include on its federally regulated label language that application of its malathion product “may not be made around bodies of water where fish or shellfish are grown and/or harvested commercially.” Cheminova didn’t include the required warning on the label until October 1999, after Fyfanon was applied in the West Nile virus control effort around Long Island Sound.
Stephen Rappaport
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