Where Does Malibu Stand When It Comes to a Rodenticide Ban?

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On Dec. 9, Malibu City Council is expected to once again discuss a proposed anticoagulant rodenticide ban—a ban on poison bait boxes that kill rats and other small rodents. Though designed as pest control, the practice of poisoning rats is known to spread poison up the food chain to pets, birds and larger mammals, including mountain lions. The issue is close to the hearts of many in Malibu, including the dozens who came out to protest rodenticides during a rally in the Civic Center on Friday, Nov. 15.

The boxes are already banned on city property—as well as in nearby communities such as unincorporated Los Angeles County—but a citywide ban has been slow to materialize, due in large part to legal advice from Malibu’s city attorney, Christi Hogin, who for years has warned the ban would be unenforceable, if not illegal, under current law.

“Anticoagulant rodenticides are destructive and despicable,” Hogin wrote in a memo to city council earlier this month. “Anticoagulant rodenticides contain lethal agents that damage blood vessels and cause death through internal bleeding. The use of anticoagulant rodenticides does not only harm rodents. It also harms and even kills pets and wildlife that consume rodents that have ingested the rodenticide. We have seen the alarming and disgusting effects of these poisons in the recent unnatural deaths of mountain lions in the Santa Monica Mountains.”

But, according to Hogin, the city’s hands are largely tied when it comes to enacting a broad ban on rodenticides. 

Firstly, according to the city attorney, those who urge the city to enact a ban with the argument, “the county did it, so why can’t Malibu?” are unaware that, “The county departments that would implement the ban have reported to city staff that they have not tried to enforce the ban against any private party.”

Therefore, Hogin argues, a similar ban would amount to little more than lip service.

“It is my understanding that the city is not interested in a mere dead letter, symbolic gesture; instead, the city wants to actually eliminate the use of these poisons. Toward that end, the city has led an effort to coalesce local governments around state legislation and has spearheaded the effort in Sacramento to get legislation passed,” Hogin wrote. “Under current law, the California Food and Agricultural Code expressly prohibits local jurisdictions, such as the city, from banning or otherwise regulating the use of pesticides, including anticoagulant rodenticides. The legal question is whether the Coastal Act changes this for coastal cities.”

In her memorandum, Hogin acknowledges that a recent decision by LA Superior Court Judge Chalfant upheld the county’s ban, with support of the California Coastal Commission. However, Hogin’s personal legal opinion was that the “Coastal Act does not authorize the Coastal Commission to create new policy or adopt laws that contradict state statutes.” Hogin goes on to state, “Whether or not we agree with the state’s policy (and Malibu does not agree with it), applying the legal canons of statutory interpretation, it is hard to avoid the conclusion that the legislature did not intend to create different rules for the Coastal Zone when it enacted the preemption on regulation of pesticides … On the other hand, the commission did persuade one Superior Court that it had such broad authority. Thus, it is possible that future courts decisions may expand the authority of the commission … As the city does not have the power to ban anticoagulant rodenticides in the city [due to the preemption], it follows that it cannot assume this power through use of an LCP amendment under the Coastal Act.”

Hogin’s take did not impress her detractors, including the leadership of local nonprofit Poison Free Malibu.

“She believes that she is correct and all the authorities, including the Coastal Commission, the Los Angeles County Counsel and the Superior Court, are wrong,” Poison Free Malibu Co-founder Joel Schulman wrote in an email on Nov. 19 that was shared with The Malibu Times. “Despite the fact that she is alone in her opinion, she is the city attorney, and she included subtleties of the Coastal Act in the memo that are confusing and beyond normal expertise. The city council has no way of evaluating it and will be intimidated to go against her.”

Poison Free Malibu also shared a letter written to Hogin in September 2015 by LA County Interim County Counsel Mary C. Wickham, which stated, “My office respectfully disagrees with your conclusion that provisions of our Santa Monica Mountains Local Coastal Program that regulate pesticide use are ‘not legally sound.’”

The proposed ban will be discussed at the next regular Malibu City Council meeting on Monday, Dec. 9, at Malibu City Hall.