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The California Department of Food and Agriculture was preparing this week to file an appeal of a Santa Cruz County judge’s decision that stopped the hotly disputed aerial spraying program to eradicate the light brown apple moth.

Superior Court Judge Paul Burdick ruled April 24 that the moth spraying program was proceeding under an improper exception to the California Environmental Quality Act. The decision stopped the program in the county until a full environmental impact report is prepared.

The state attorney general’s office is preparing a request for an expedited appeal to the 6th District Court of Appeal, but it hadn’t been filed by Press-Banner press time, according to Steve Lyle, a CDFA spokesman.

Shortly after the judge ruled, Gov. Arnold Schwarzenegger suspended the spray program statewide and ordered toxicity tests on CheckMate, the synthetic pheromone used in the spray program that had been scheduled to resume June 1.

The governor’s office did not mention Burdick’s ruling, saying instead that he wanted to reassure residents after having met with state Sen. Carole Migden and others concerned about the spraying plan.

Schwarzenegger said CheckMate will undergo tests of its potential for eye, inhalation, respiratory and other irritants, known as the “six-pack” toxicology test.

Reminded that the six-pack test isn’t a complete EIR, Schwarzenegger spokeswoman Rachel Cameron said the governor was “confident we will prevail” in the appeal of Burdick’s ruling. 

Burdick ordered Food and Agriculture Secretary A.G. Kawamura to rescind the “order of exemption” from CEQA that he had issued for the spray program to start last summer on an emergency basis.

The second round of spraying in June would have followed a limited program last year. This year’s area had been expanded to include San Lorenzo Valley, which was not sprayed last year, and all of Scotts Valley. Only a portion of the city was affected last year.

A packed courtroom of more than 100 spectators burst into thunderous applause and cheers when Burdick made his ruling. The judge scowled and raised his hands in a gesture for silence.

Monterey Bay Area residents opposed to the spraying hailed the decision. The California Alliance to Stop the Spray scheduled a “Celebrate the Spray Delay” picnic from noon to 3 p.m. Saturday, May 3, in San Lorenzo Park, 137 Dakota Ave., in Santa Cruz, including music and organic food.

Also in agreement was Assemblyman John Laird, D-Santa Cruz, who had urged the agriculture department to do more testing on CheckMate and to listen to concerned residents.

“Since last summer, I have called for independent third-party review of CDFA’s LBAM eradication plans,” Laird said. “Based on an emergency declaration, the CDFA has moved forward without adequately answering questions about the health effects, efficacy and environmental impact of its eradication plans.”

Laird said he hopes “the ruling will make way for additional science-based, independent third-party review.”

Burdick’s ruling came on a lawsuit filed by Santa Cruz County and the city of Santa Cruz challenging the state’s authority to conduct the program without preparing an EIR. The city and county contended that the presence of the moth does not constitute an emergency, because there is no evidence yet of crop damage.

Assistant Attorney General William Jenkins argued that the potential for crop damage constituted an emergency, but the judge ruled that CEQA requires the presence of physical damage, not economic or potential damage.