Despite ruling, judge indicates unwillingness to pull poison off the market

By MIKE CORN

mcorn@dailynews.net

A federal judge has sided with three environmental groups, ruling the Environmental Protection Agency failed to follow its own rules when it granted registration of a blood-thinning poison for prairie dogs.

But it might be a hollow victory, as District Judge Ellen Huvelle indicated she has little interest in issuing an injunction against LiphaTech, the maker of the controversial poison Rozol.

Huvelle's ruling was made in mid-June, when she granted a motion by the Natural Resources Defense Council. In effect, she found the EPA had violated the Endangered Species Act by registering Rozol without first consulting with the U.S. Fish and Wildlife Service.

Separate lawsuits were filed by NRDC and Defenders of Wildlife and Audubon of Kansas after they learned the EPA had issued a general registration for the use of Rozol to control prairie dog populations.

Previously, Rozol had been licensed on a state-by-state basis under what are called special local needs rules. Rozol manufacturer Liphatech, which joined the lawsuit filed against the EPA, had agreed to cancel the local registrations before the general use would be allowed.

EPA, the judge said in her 38-page ruling, "essentially admits that it utterly failed to satisfy the procedural requirements of ... the ESA before it registered Rozol."

Despite that, the judge agreed with the EPA that vacating the Rozol registration would be an inappropriate move, even though it is within the judge's power.

"... Several factors may caution against such a broad exercise of power," the judge said of suspending the registration, preventing its use. "LiphaTech voluntarily withdrew its local registrations in Colorado, Kansas, Nebraska, Oklahoma, Texas and Wyoming as a condition of agency registration. Thus, an injunction would prevent LiphaTech from selling its Rozol anywhere -- even in a state like Kansas, where Rozol has been approved for use since 2004."

But, she went on to say, simply remanding the case to EPA would do little good.

That's because EPA has already initiated formal consulting with FWS and previously solicited comments on suspension of the pesticide. Despite that, EPA in November refused to suspend the registration, but announced it had started talking with the wildlife agency.

Despite her finding for NRDC, Huvelle scheduled a July 21 hearing to determine "what injunctive relief is appropriate, if any."