Can Maryland spray pesticides for gypsy moth control on private property without the owner's consent?

Plain-English summary

In 1988, two members of the Maryland House of Delegates asked the Attorney General a series of questions about the State's gypsy moth control program, prompted by a constituent's objection to the pesticide Dimilin. The opinion concluded the Secretary of Agriculture had broad discretionary authority to design and run the program, including choosing which pesticide to use, where and when to spray, and whether to change course after deciding to spray. It found that federal and state law permitted the use of Dimilin (subject to label restrictions) and that its use didn't run afoul of Maryland's Chesapeake Bay protection laws, since the Department's policy was to use a different, water-safe pesticide near the Bay and its tributaries. The opinion also concluded that neither the State nor a county had to hand out consumer pesticide information or post warning signs when spraying trees for gypsy moth control, that the Secretary could enter private property to spray even over an owner's objection without violating the Fourth Amendment, and that citizen letters objecting to spraying were subject to the Maryland Public Information Act and had to be disclosed on request, apart from any medical or psychological details they contained.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's Department of Agriculture spray pesticides on someone's property even if they objected?
Yes, according to this 1988 opinion. It concluded the Secretary of Agriculture had statutory authority to enter private property to control dangerously injurious plant pests like the gypsy moth, and that spraying trees did not amount to a Fourth Amendment "search," so an objecting landowner could not block spraying on that basis, though the Department's actual practice at the time was to honor objections voluntarily by excluding the property from a spray block.

Did Maryland law require warning signs or safety information when spraying for gypsy moths?
No. The opinion found that the consumer-information and warning-sign requirements in the pesticide "right-to-know" law applied only when a pesticide was being applied to a lawn or landscape plants by a licensed private business, not to a government agency's aerial spraying of forest and shade trees for gypsy moth control.

Were letters from residents objecting to gypsy moth spraying public records Maryland had to release?
Yes. The opinion concluded such letters were "public records" under the Maryland Public Information Act and had to be disclosed to anyone who asked, unless a specific letter revealed medical or psychological information about the writer, in which case only that information could be withheld while the rest of the letter was released.

Background and statutory framework

The gypsy moth, an invasive forest pest, had spread across Maryland since the 1970s, and by 1988 the State's suppression program could treat only about 60% of the infested area. The opinion traced the Secretary of Agriculture's authority to Agriculture Article §5-304, which lets the Secretary control, retard, or eradicate dangerously injurious plant pests, §5-305(b), which authorizes aircraft dissemination of pesticides "notwithstanding any other provision of law," and §5-306, which lets the Secretary enter public or private land to inspect, destroy, or treat plant pests and makes it unlawful to deny access or resist. Counties, the opinion found, had no express spraying authority but could act under their general nuisance-abatement power, citing Adams v. Commissioners of Trappe and the gypsy moth's status as a public nuisance under Burley v. City of Annapolis.

On the pesticide itself, the opinion noted Dimilin was federally and state-registered under the Federal Insecticide, Fungicide and Rodenticide Act and Agriculture Article §5-105, and that its label permitted gypsy moth use by a certified applicator while restricting other uses. It found no state or federal law banned Dimilin, and that the Department's practice of using a different, non-toxic pesticide (B.t.) near the Chesapeake Bay and its tributaries kept the program consistent with the Bay Critical Area protection laws in the Natural Resources Article.

On notification, the opinion read Agriculture Article §5-208(a)'s consumer-information duty and §5-208(c)(1)'s sign-posting duty as applying only to a "licensee," a private pest-control business, not to a government "permittee" performing the same work, and found the sign-posting rule specifically limited to lawn and landscape-plant applications rather than forest and shade-tree spraying.

On property access, the opinion applied Katz v. United States and Camara v. Municipal Court to conclude that while a warrant would be needed to search a place with a genuine expectation of privacy, spraying trees on open land involved no "search" implicating the Fourth Amendment, citing California v. Ciraolo and Dow Chemical Co. v. United States, and that entry under statutory authority to abate a nuisance was not a trespass under Heinze v. Murphy.

On public records, the opinion applied the Public Information Act's broad definition of "public record" in State Government Article §10-611(f) and the general disclosure duty in §10-613(a), following Superintendent, Maryland State Police v. Henschen, and found that objection letters could be withheld only to the extent they revealed medical or psychological information under §10-617(b), with the remainder of the letter still subject to release.

Citations and references

Statutes:

• Agriculture Article §5-304
• Agriculture Article §5-304(2) and (3)
• Agriculture Article §5-305(b)
• Agriculture Article §5-305(c)
• Agriculture Article §5-305(d)
• Agriculture Article §5-305(e)
• Agriculture Article §5-105
• Agriculture Article §5-207
• Agriculture Article §5-208(a)
• Agriculture Article §5-208(c)(1)
• Agriculture Article §5-306
• Agriculture Article §5-307
• Article 23B, §22
• Article 25, §3(n)
• Article 25A, §5J
• Article 25B, §13
• State Government Article §§10-601 through 10-628
• State Government Article §10-611(c)
• State Government Article §10-611(f)
• State Government Article §10-612(a)
• State Government Article §10-613(a)
• State Government Article §10-615
• State Government Article §§10-616 and 10-617
• State Government Article §10-617(b)
• 7 U.S.C. §136 et seq.
• 7 U.S.C. §138
• 33 U.S.C. §1251 et seq.
• COMAR 15.05.01.016(2)
• COMAR 15.05.01.11
• COMAR 15.05.01.04
• COMAR 15.05.01.10
• Natural Resources Article §§8-1801 through 8-1816
• COMAR 14.15
• COMAR 14.15.01.016(2) and (28)
• COMAR 14.15.05
• COMAR 14.15.06
• COMAR 26.08.02
• Chapter 121, Laws of Maryland 1987
• Chapter 10, Laws of Maryland 1988

Cases:

• Burley v. City of Annapolis, 182 Md. 307, 312, 34 A.2d 603 (1943)
• Adams v. Commissioners of Trappe, 204 Md. 165, 174, 102 A.2d 830 (1954)
• Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939)
• Heinze v. Murphy, 180 Md. 423, 433, 24 A.2d 917 (1942)
• Katz v. United States, 389 U.S. 347, 360 (1967)
• Dow Chemical Co. v. United States, 476 U.S. 227 (1986)
• Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978)
• Camara v. Municipal Court, 387 U.S. 523 (1967)
• California v. Ciraolo, 476 U.S. 207 (1986)
• United States v. Earth Sciences, Inc., 599 F.2d 368, 371 (10th Cir. 1979)
• Superintendent, Maryland State Police v. Henschen, 279 Md. 468, 369 A.2d 558 (1977)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

AGRICULTURE

Pest Control—Gypsy Moth Control Program—Pesticides—Secretary of Agriculture Has Broad Authority To Determine Nature and Details of Program, Including Pesticide Use.

December 2, 1988

The Honorable Joan B. Pitkin
The Honorable William C. Bevan
Maryland House of Delegates

You have requested our opinion on a series of questions pertaining to the State gypsy moth control program. You ask:

1. Does the State or a county have legal authority to spray for gypsy moth control?

2. Does the State have the discretionary authority, once it decides to spray, to alter its course and not spray at all?

3. Are there any federal or State laws that govern how or when citizens are to be notified about spraying?

4. Do federal or State laws forbid or restrict the use of the pesticide Dimilin?

5. Is the use of Dimilin to control the gypsy moth banned in any state?

6. Is Dimilin's use consistent with State laws protecting the Chesapeake Bay?

7. When spraying, is the State or a county required to post warning signs and pass out the consumer information required by §5-208 of the Agriculture Article ("AG" Article), the pesticide "right-to-know" law?

Additionally, you have asked the following questions regarding the rights of a citizen when the State decides to spray:

8. Do any federal or State laws give a citizen the right not to have his or her property sprayed?

9. Do any State laws protect the privacy of an individual who protests to the Department of Agriculture about the use of Dimilin on his or her property?

We recognize that the gypsy moth control program, particularly its use of Dimilin, is controversial. An opinion of the Attorney General cannot appropriately address any of the policy questions concerning the program. Our legal analysis leads us to conclude as follows:

1. The State and counties have the authority to spray for gypsy moth control.

2. The Secretary of Agriculture has broad discretionary authority over the details of the gypsy moth control program and may alter any program requirement. Accordingly, the Secretary may rescind his initial decision to spray an area.

3. No federal or State law governs how or when citizens are to be notified of any proposed spraying.

4. Both federal and State law allow, but restrict, the use of Dimilin.

5. The use of Dimilin to control gypsy moths is not banned in any state.

6. The Department of Agriculture's use of Dimilin to control the gypsy moth is consistent with State laws protecting the Chesapeake Bay.

7. When spraying for gypsy moth control, neither the State nor a county is required to distribute pesticide information or to post a sign pursuant to the "right-to-know" law.

8. If the Secretary of Agriculture finds it necessary to do so, the Secretary may spray for gypsy moth control even without a landowner's consent.

9. The Maryland Public Information Act generally requires disclosure of letters to the Department of Agriculture objecting to the use of Dimilin or any pesticide. However, certain personal information in a letter of this kind would be protected from disclosure.

I
The Gypsy Moth Problem

The gypsy moth is responsible nationwide for extensive defoliation of valuable forest and shade trees.1 This forest pest, native to Europe, was introduced to North America in 1869 by a naturalist, Leopold Trouvelot, who brought them to his laboratory in Medford, Massachusetts, for silkworm experiments. However, the insect accidentally escaped and its descendants arrived in Maryland in 1971. M. Gerardi and J. Grimms, The History, Biology, Damage and Control of the Gypsy Moth 21 (1979).

The moth is a public nuisance. "Public nuisances ... [are] those nuisances which have a common effect and produce a common damage ... [and include] those which prejudice public health or comfort ...." Burley v. City of Annapolis, 182 Md. 307, 312, 34 A.2d 603 (1943). When wooded areas are infested with larvae that move up and down trees during the day, trees are soon defoliated and normally cooler wooded areas are warmed. These environmental changes may cause snakes and other animals to be driven into populated areas, and the unpleasant odor of dying larvae often permeates a defoliated area. United States Department of Agriculture, The Gypsy Moth: Research Toward Integrated Pest Management 19 (1981) ("Gypsy Moth Research").

Federal, state, and local control efforts include quarantines and the use of pesticides.2 According to the Maryland Department of Agriculture, Maryland's 1988 gypsy moth infestation was so severe that only about 60% of the infested area, or 167,000 acres, could be treated. Many urban areas, such as portions of Baltimore City, came under heavy gypsy moth attack. Using helicopters or fixed wing aircraft, the Department of Agriculture and other cooperating State and local agencies conducted a suppression program by applying two pesticides: Dimilin, over heavily infested forested or populated areas; and B.t., near environmentally sensitive areas like the Chesapeake Bay and its tributaries.3

Before spraying, the Department informs the general public of designated treatment areas: neighborhoods are divided into proposed spray blocks, marked with aerial balloons, and landowners are notified of estimated spray dates by mail. The Department drops the property of any objector from a spray block. Its policy on this subject states:

Removal of the property of an objector is accompanied by at least a 100 foot buffer zone of no-spray area between it and the remainder of the proposed spray block, unless the property owner waives that provision. Thus, the accommodation of an objector usually results in other properties, previously notified of the State's intent to treat, being dropped. In this case a reasonable effort is made to inform the landowners so affected about the change in status. This is done usually by recording an announcement of changes which is available via the toll-free information number.

Maryland Department of Agriculture and U.S. Department of Agriculture Forest Service, Environmental Assessment, 1988 Cooperative Gypsy Moth Suppression Project 42-43 (March 1988) ("Ag. Dept. E.A. 1988").4

Many residents who want spraying are dropped from spray blocks because a neighbor objects. Given that a 100-foot buffer zone is maintained around each objector's property, a few strategically located objectors can make it impossible for the Department to spray a block. Some residents ask for the names and addresses of objectors in an attempt to change their minds. However, since the Department has to act within a relatively short period to kill the most gypsy moth caterpillars, it lacks flexibility to change its schedule to accommodate those objectors who do change their minds and who then want spraying.5

II
Authority For Gypsy Moth Control Program

A. Secretary of Agriculture

The Secretary of Agriculture has broad authority to conduct a program to manage or control the gypsy moth. The Secretary has the power to develop and to direct the details of any program "to control, retard or eradicate dangerously injurious plant pests...." AG §5-304.6 Also, the Secretary may establish and rescind quarantines against plant pests or infected plants and direct the movement of plant or nonplant materials from quarantined areas. AG §5-304(2) and (3).

The Secretary is expressly empowered to use aircraft: "If the Secretary determines that an infestation, infection, or disease exists, he may control or retard its spread by aircraft dissemination of pesticides, notwithstanding any other provision of law." AG §5-305(b). Furthermore, when aircraft are used, the Secretary may expend funds appropriated for pest control "for use in controlling incipient, emergency, or persistent insect, fungus, or disease outbreaks which the Secretary determines require immediate elimination as a menace to the economic welfare and health of the people of the State." AG §5-305(c). Additionally, "[h]e may employ personnel and execute work undertaken pursuant to this section by contract or open account as he deems to be in the best interest of the State." AG §5-305(d). Finally, "[t]he Secretary may cooperate with any other state or federal agency in determining the necessity for and conducting aircraft dissemination of pesticides." AG §5-305(e).

These provisions vest in the Secretary full authority to determine where and how the gypsy moth control program is to be carried out, including such details as the kind of pesticide to be used, the use of aircraft, the areas of the State to be sprayed, and the means of notification when spraying is done.7

B. Local Government

The Department of Agriculture gives counties information about the gypsy moth and its control. Although counties and municipalities do not have express authority to spray pesticides for gypsy moth control, nevertheless this authority exists as an aspect of their broad authority to prevent and remove nuisances. Adams v. Commissioners of Trappe, 204 Md. 165, 174, 102 A.2d 830 (1954) ("[T]he Legislature may delegate to administrative officers the authority to determine whether certain things constitute public nuisances, with the power to abate them ...."). See Article 23B, §22; Article 25, §3(n); Article 25A, §5J; Article 25B, §13.8

III
The Pesticide Dimilin

Dimilin is one of the pesticides that the Department of Agriculture uses to control the gypsy moth. Under federal and State law, any pesticide must be registered with the U.S. Environmental Protection Agency and the Maryland Department of Agriculture before it can be sold or used in Maryland. See Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136 et seq.; AG §5-105. Dimilin is so registered.

Every registered pesticide has a federally approved label that defines and restricts its use. Dimilin's label states that it can be used for gypsy moth control: "Dimilin 25W Insecticide is effective against the larval stages of the gypsy moth." Aerial application is authorized at recommended rates. Dimilin is recommended for use in state gypsy moth quarantine programs like Maryland's.

Dimilin's label also restricts and directs its use and handling.9 For example, the label states that it is a "restricted use pesticide"; this means that it may only be sold to, or applied by, a certified applicator or a person under that applicator's direct supervision.10 The label warns of human health risks: "Hazardous to Humans. Avoid contact with skin." It also warns of environmental hazards: "Do not apply directly to water or wetlands, except under the forest canopy when used to control forest pests."

Thus, label instructions restrict the use of Dimilin; however, gypsy moth use is allowed. No other State or federal law prohibits this use. Moreover, we are informed by the Forest Service of the U.S. Department of Agriculture that Dimilin is not banned in any other state.

Additionally, the Department of Agriculture's use of Dimilin does not violate any State law to protect the environment or the Chesapeake Bay. Since Dimilin may be toxic to certain aquatic and invertebrate animals, it is the Department's policy not to spray near lakes, ponds, rivers, or the Bay.11 Rather, when spraying near these areas, the Department uses B.t., which is reported to be non-toxic to aquatic life and will not harm water quality.

This policy is consistent with the Chesapeake Bay Critical Area Protection Program. See §§8-1801 through 8-1816 of the Natural Resources Article. See also COMAR 14.15 (regulations of Chesapeake Bay Critical Area Commission). In fact, laws protecting the Bay presumably allow pesticides to be used in the Critical Area. COMAR 14.15.01.016(2) and (28), 14.15.05, and 14.15.06. In any event, the Department's policy is to avoid this area and to minimize harm to water quality and animal habitats.12

In summary, federal and State law allow Dimilin to be used for Maryland's gypsy moth control program. This use in itself does not violate any law to protect the Bay.13

IV
Pesticide Warning Signs and Customer Information

You asked whether an agency of the State or a county is required to provide the public with consumer information or to post warning signs in connection with the gypsy moth program. Specifically, you question whether AG §5-208(a) requires a government agency to pass out consumer information to each person whose property is sprayed. AG §5-208(a) provides as follows:

(a) When a pesticide is applied, or at the time a customer enters into a contract with a licensee for pest control, a licensee shall provide a customer with the following written information:

(1) Name of licensee;
(2) Maryland pesticide business license number;
(3) Telephone number of licensee;
(4) Common name of pesticide or active ingredient applied;
(5) Pertinent safety information, as determined by the Department, including health risks for humans and animals, about pesticide in the end-use dilution applied;
(6) Maryland Poison Center telephone number; and
(7) Any other information required by the Department.

(Emphasis added.)

The customer information requirement in this section applies only to a "licensee" — that is, a private business entity doing pest control work; it does not apply to a government agency doing the same work. Compare AG §5-207(e) and (f) with AG §5-207(i) (a government agency is not a "licensee" but a "permittee," a holder of a public agency permit). See also COMAR 15.05.01.11 (regulations requiring licensees to provide pesticide information to customers).

You also question whether AG §5-208(c)(1) requires a government agency to post warning signs on a landowner's property each time it sprays against the gypsy moth.14 By its terms, AG §5-208(c)(1) only applies when a government agency is "applying a pesticide to a lawn or exterior landscape plants." The Department of Agriculture has determined, and we agree, that this requirement does not govern gypsy moth spraying, because pesticides are applied only to forest trees or to shade trees in residential areas and not directly to lawns or to landscape plants.15 Thus, it is our view that the State or a county government may do gypsy moth control work without providing customer information or posting a warning sign.16

V
Objections to Gypsy Moth Spraying

The current gypsy moth suppression program is voluntary; the Department will remove any objector's property from a spray block with a surrounding 100-foot buffer to reduce possible pesticide drift from nearby areas.17 However, it is our opinion that the law allows the Department to spray over the objection of residents, if the Secretary were to make that policy choice.

That the gypsy moth is a pest in need of control is clear. If the gypsy moth is allowed to destroy many of the State's forest and shade trees, obvious environmental and economic consequences will follow, including the loss of enjoyment and value of real estate; destruction of recreational areas; harm to the lumber industry; and the destruction of animal habitats. Ag. Dept. E.A. 1988 at 7. After the Department locates a gypsy moth infestation, it determines which areas will be sprayed. Of course, if enough residents protest and are able to stop these efforts, gypsy moth control would come to a halt and this pest would spread unchecked into nearby areas.18

The Secretary of Agriculture has been given broad statutory to "enter any ... private land ... to inspect ... or destroy ... dangerously injurious plant pests," and the owner may not "deny access [or] offer any resistance to" these activities. This authority is found in AG §5-306:

(a) To accomplish the purpose of this subtitle [plant pest control], the Secretary may enter any public or private land or property, vehicle, vessel or aircraft in the State to inspect, destroy, treat, or experiment with dangerously injurious plant pests. It is unlawful to deny access to, offer any resistance to, hinder, misrepresent or conceal facts from the Secretary or his agent in the performance of their duties.

(b) If the Secretary determines that any dangerously injurious plant pest can be controlled without destroying the plant, then he shall order it treated. If the person notified fails to comply with the order, the Secretary shall apply the appropriate control measures and the owner shall pay the cost. If the owner refuses to pay the cost, it shall be collected as provided in §5-307. The Secretary may treat any suspicious plant found in dangerous proximity to those infested or infected in order to prevent dissemination.19

Of course, the Secretary's authority to inspect private property is subject to the requirements of the Fourth Amendment concerning searches and seizures. The Department inspects private property for the gypsy moth. After this is done, it knows where to spray. Although few, if any, residents object, if one does, the Secretary must obtain a warrant to inspect those places where a person has a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967). This would include a person's private home, vehicle, vessel, or aircraft, but would not include open areas on private property where there is no reasonable expectation of privacy. Dow Chemical Co. v. United States, 476 U.S. 227 (1986); Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967). The application of pesticides on private property does not involve a search; hence, any person who objects cannot claim a violation of any right protected by the Fourth Amendment. See California v. Ciraolo, 476 U.S. 207 (1986); Dow Chemical Co. v. United States, 476 U.S. 227.

VI
Letters to the Department About Gypsy Moth Spraying

You have asked whether any State laws protect the privacy of those who express their views to the Department about its gypsy moth program.20 Before each spraying season, the Department asks residents for their views. In 1988, it received approximately a thousand letters, both for and against spraying; some expressed concern about health hazards caused by Dimilin and B.t.21 Since spraying is voluntary, any protester's land is excluded. However, when this happens, a neighbor who wants spraying might be excluded. And with enough protesters, whole residential areas have been denied spraying.22 After receiving protest letters, the Department receives letters from angry neighbors demanding to know who protested.

Any letters the Department receives are subject to the Maryland Public Information Act ("PIA"), codified at §§10-601 through 10-628 of the State Government Article ("SG" Article). The PIA affords "access to information about the officers of government and the official actions of public officials and employees." SG §10-612(a). To accomplish the widest possible disclosure, the PIA requires that, "[e]xcept as otherwise provided by law, a custodian shall permit a person or government unit to inspect any public record at any reasonable time." SG §10-613(a).23 The term "public record" means any documentary material — expressly including correspondence — that is made or received by a unit of State government in connection with its conduct of public business. SG §10-611(f). Thus, the PIA applies to letters received by the Department about the gypsy moth program. Unless they are specifically exempt from PIA disclosure, they must be made available to anyone who requests them. See Superintendent, Maryland State Police v. Henschen, 279 Md. 468, 369 A.2d 558 (1977).

Under SG §10-615 of the PIA, public records must be withheld from disclosure if (i) the information they contain is made privileged or confidential by law, or (ii) inspection of a public record would be contrary to State or federal law (or a court rule or order). Even if a person asks that his or her letter be kept confidential, these exemptions do not apply to letters to the Department from persons who merely express their views on gypsy moth spraying.24 "Privileged or confidential" records are those protected by common law or statutory privileges; none applies to the letters you have questioned. See 66 Opinions of the Attorney General 98, 103 (1981); 64 Opinions of the Attorney General 236, 237 (1979). Furthermore, no federal or State law (or court order or rule) prevents their inspection.

The PIA also lists certain types of records that must be withheld from public disclosure. SG §§10-616 and 10-617. While letters to the Department on the gypsy moth program generally do not fall within this list of protected records, SG §10-617(b) might apply to prevent disclosure if a letter states any medical or psychological information about an individual.25 However, this exemption would not prevent access to the entire letter; instead, it would require deletion of medical or psychological information before the letter is released.

VII
Conclusion

In summary, it is our opinion that the Secretary of Agriculture has broad authority to determine the requirements of any gypsy moth control program, including the kind of pesticide to be used and where and when it is to be sprayed. The Secretary's conduct of the program has been consistent with federal and State laws on the use of pesticides and on environmental protection.

J. Joseph Curran, Jr., Attorney General
Craig A. Nielsen, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1 Oak, apple, American beech, birch, hawthorn, linden, sweetgum, and willow are target trees for the gypsy moth. Trees weaken and die after repeated defoliations.

2 A federal gypsy moth quarantine, which applies to all northeastern states and other infested areas, is monitored by the U.S. Department of Agriculture. Gypsy Moth Research at 19, 33. The Maryland Department of Agriculture has determined that the gypsy moth is a dangerously injurious plant pest and has established a State quarantine to restrict its spread. State Department of Agriculture, Gypsy Moth Quarantine (1972).

3 The pesticide B.t. (Bacillus thuringiensis) consists of naturally occurring bacteria that kill gypsy moth caterpillars. B.t. does not affect as many groups of arthropods (e.g. insects, crustaceans) as Dimilin, but Dimilin is more effective against the gypsy moth. Maryland Department of Agriculture, Gypsy Moth Spray Notification at 2 (undated). See Farm Chemicals Handbook 88 at C-24 (74th ed. 1988) (B.t. is "[h]armless to humans, animals, and useful insects; safe for the environment"). B.t. specifically kills immature insects in the Order Lepidoptera (butterflies and moths).

4 The details of the Maryland gypsy moth program are reported fully in this environmental assessment, which was prepared as part of the Forest Service's Final Environmental Impact Statement for federal funding for states in a nationwide gypsy moth suppression program. The environmental assessment describes the plan of action; alternative plans; affected environment; environmental and human health risks; and public involvement and notification.

5 The Department must apply pesticides by aircraft at just the right time to kill the insects. Wind speeds must be between 2 to 10 mph; the temperature must be below 80 degrees farenheit, but high enough to ensure the flow of pesticide; tree foliage must be dry with no threat of rain for 4 to 6 hours following application; oak foliage development must be from 15% to 75%; and an effective application must be made after egg hatch and larvae are present. Ag. Dept. E.A. 1988 at 22.

6 The Secretary has determined that the gypsy moth is a dangerously injurious plant pest. See note 2 above. See generally Ag. Dept. E.A. 1988 at 1-5.

7 The Secretary's gypsy moth program receives technical or financial support from federal, State, and local governments. In 1987 and 1988, both federal and State funds were appropriated for the program. Chapter 121, Laws of Maryland 1987; Chapter 10, Laws of Maryland 1988.

8 At present no counties have spray programs; all rely on the State program. Information supplied by Dr. Charles Puffinberger, Assistant Secretary, Maryland Department of Agriculture. However, if a county were to adopt a gypsy moth control program, it would have broad discretionary authority to determine any program requirement, such as when spraying is to be done and when residents are to be notified.

9 It is a violation of both federal and State law for a person to use any pesticide, including Dimilin, in violation of label directions. 7 U.S.C. §138; COMAR 15.05.01.016(2). See generally University of Maryland, Maryland Pesticide Applicators Training Series Core Manual 14-21 (1987).

10 A certified applicator is a person who is trained and certified by the Department of Agriculture to handle pesticides. AG §5-207. Under the Department's gypsy moth program, Dimilin is applied by a licensed firm and under the direct supervision of a pesticide applicator certified in pest control Category II or Category X (regulatory pest control). Information supplied by Robert Tichenor, Chief, Forest Pest Management, Maryland Department of Agriculture.

11 The Department does not use Dimilin in the 1,000 foot "Initial Planning area" of the Bay Critical Area, and it maintains a 100 foot no-spray buffer zone if it determines that it is necessary to use Dimilin near any lake, river, or pond. Ag. Dept. E.A. 1988, at 24.

12 Even though it does not apply Dimilin over water, the Department has contracted with the University of Maryland to monitor certain Maryland water sources for Dimilin. In addition, before spraying any area, Department officials consult the United States Fish and Wildlife Service, the State Department of Natural Resources, and private conservation organizations for advice on avoiding pesticide contamination to rare or endangered species. Ag. Dept. E.A. 1988 at 24 and 25.

13 The Department sprays trees with Dimilin but does not spray it over water areas like the Bay and its tributaries. The only way that Dimilin conceivably could enter the Bay would be from nonpoint source runoff. In any case, this runoff would not violate the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., since a pesticide pollutant from a nonpoint source is not subject to control under the Act. United States v. Earth Sciences, Inc., 599 F.2d 368, 371 (10th Cir. 1979). However, it is possible that a violation of State law could be found if significant pesticide runoff is found in the Bay as a result of the Department's spraying. See COMAR 26.08.02 (regulations on water pollution).

14 If this were required, State and local governments would be responsible for posting over 100,000 signs on treated properties. Information supplied by Robert Tichenor, Chief, Forest Pest Management, Maryland Department of Agriculture.

15 When doing pest control work, both private pest control and public agency applicators are to be certified in the appropriate category. COMAR 15.05.01.04. When doing gypsy moth control, the State contracts with a pest control firm licensed in pest control Category II (Forest Pest Control); when applying a pesticide to a lawn or shrub, an applicator must hold a pest control Category III (Ornamental or Turf) certificate (license). The Department of Agriculture has determined that the sign posting requirement only applies to a person or agency that holds pest control Category III license or permit and not to one that holds a license or permit in Category II. COMAR 15.05.01.10.

16 The Department takes various steps to notify landowners about gypsy moth spraying. See Ag. Dept. E.A. 1988 at 40-43. In 1988, over 90,000 residents and property owners were notified. Information supplied by Robert Tichenor, Chief, Forest Pest Management, Maryland Department of Agriculture.

17 Ag. Dept. E.A. 1988 at 26.

18 Moths from the property of a person who has an infestation are likely to spread to adjoining properties. A person does not have the right to use his property to harbor a public nuisance nor to create a nuisance to adjoining property owners. Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943); Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939).

19 Because this statute authorizes government authorities to enter on private property to destroy any dangerously injurious plant pest, it affords a defense to a charge of trespass. See Heinze v. Murphy, 180 Md. 423, 433, 24 A.2d 917 (1942) ("It is not a trespass for an officer of the law to go upon another's premises in the line of his duty...."). See also Restatement (Second) of Torts §211 (1986) (legislatively created authority carries with it the privilege of government authorities to enter on private property to perform a duty or responsibility, if reasonably necessary).

20 Part of your request involves an actual incident between the Department and a person who opposed spraying with Dimilin. We would be pleased to explore this particular matter further if you were able to supply us with the identity of the person involved.

21 The Department take precautions to reduce pesticide exposure to residents, who are advised to stay indoors during spraying. Most spraying is done when residents are indoors. Poison Control Centers are notified of spraying and are given clinical and toxicological information on Dimilin and B.t. in case of an accident. Spraying is done to the tree foliage canopy, which drastically reduces exposure to humans. Agricultural areas, including gardens and animal grazing areas, are avoided. Ag. Dept. E.A. at 26.

22 The aircraft cannot spray in a zig-zag fashion to avoid some properties while spraying others.

23 The "custodian" of a public record is the governmental officer or employee who is responsible for keeping the public record or who actually has physical custody and control of the record. SG §10-611(c).

24 We assume that such a letter contains only the author's view on gypsy moth spraying and no other information that would require the letter to be withheld from disclosure.

25 This could happen if the author cites medical or psychological reasons for objecting to spraying.