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Botanist and environmentalist Ralph Zingaro may know the cure for tree diseases wiping out California,s oaks, pines and palms, but a Marin County lawsuit is trying to shut him down.
The epidemic of bleeding trees was first noticed in 1995, affecting the tanoaks in leafy Northern California coastal areas like Marin County, Santa Cruz, Mill Valley and Monterey. Soon after, Sudden Oak Death (the killer earned a name) was detected in other tree species, including coast live oaks, which rapidly deteriorated and died off. Majestic giants that were more than 100 years old were dropping like flies, succumbing within weeks to the blight of yellowed drooping leaves and blood-like bark cankers—the burgundy-red-to-black-colored sap oozing from their trunks. Horrified Northern Californians watched their woods slowly bleeding to death: The views along California’s coastal highways were irreparably changed, endangered wildlife lost vital shelter and property owners were rapidly giving up on their beauty, privacy and shade.
With the cause of the blight unknown, government officials didn’t know how to react. Theories that the epidemic was caused by bark beetles seen feeding on infected trees prompted the Marin County Department of Agriculture to recommend spraying with a pesticide, Astro. Outraged environmentalists balked. For one thing, it didn’t work. For another, it left an even-more-toxic environment and the infection kept right on accelerating.
It didn’t take long for Sudden Oak Death to show up in other areas and tree species. By 2000, Sudden Oak Death was found in California’s historic redwoods and Douglas Firs, which might have led some to conclude that all tree deaths were connected. Amazingly, it did not. Scientists studying the epidemic held fast to the theory that these were all unrelated illnesses. In a “Homeowner’s Guide to Sudden Oak Death,” provided in the mid-90s by the University of California in Davis’s Nicole Palkovsky and Pavel Svihra, the writers offered, “It’s unclear whether tanoaks and coast live oaks are being affected by the same disorder.” Sometime later, in 2000, UC Berkeley scientists Matteo Garbelotto and David Rizzo isolated the cause of the disease—a fungus, Phytoph-thora ramorum, which is believed to attack the roots.
Garbelotto, armed with a Ph.D. in plant pathology from UC Berkeley, millions of dollars in grants and the blessings of Marin’s Department of Agriculture, set about the task of finding a cure.
But one guy kept getting in their way. Petaluma-based botanist Ralph Zingaro insisted that the findings were wrong. Zingaro, a hard-line environmentalist, known to Northern California conservationists as an environmental “contrarian,” received his degree in forestry from Cornell University in 1977 and has been digging in the dirt and hugging trees ever since. His company, Bioscape, touts non-toxic products, beneficial insects and organic fertilizers, and his clients include Southern California golf courses Bear Creek and Canyon Lake, pesticide-conscious homeowners from Marin County to Los Angeles and conservation-minded celebrities introduced to him through the Natural Resources Defense Council (NRDC). The 47-year-old Zingaro belongs to various societies like the Pesticide Free Coalition and the NRDC, helped the city of Fairfax go pesticide-free and speaks as often and as frankly as he’s permitted about the scourge of environmental poisons.
Zingaro doesn’t believe in fungus. He believes in a toxic planet. “Read The Dying of the Trees, he suggests. In the 1995 book, author Charles Little exposes tree mortality across the U.S. Though suspected causes span everything from acid rain to smog, a damaged ozone layer, pesticides and toxic emissions from burning fuels, Little makes it clear that something has gone terribly wrong with the ecosystem. “That’s what’s weakening our forests,” says Zingaro, “leaving trees that are unable to withstand otherwise harmless insects or fungi that have been around forever.”
Garbeletto contacted Zingaro shortly after his discovery to conduct some experiments. Although Zingaro had been engaged in a strongly worded public rebuttal, he agreed. They were, after all, both interested in a cure. The pathogen, if it existed at all, Zingaro insisted, was merely a secondary cause, a microbe feeding on a malnourished, environmentally stressed tree. “It’s caused by soil acidification,” Zingaro said to anyone who found his or her way onto his three-acre Petaluma ranch. (An outbuilding houses the office, experimental “dirt” and products: “I get to the truth because I’m willing to pick up a shovel and dig.”)
Applying his own theory to Sudden Oak Death, Zingaro fed his customers’ trees—those affected and also ones deemed “high-risk”—with a phosphite-based fertilizer, Bio-Serum, which he touted as a “tree tonic.” He also says he applied a combination of other minerals and rock dust, designed to address the problems with the soil. “The fertilizer was around for ages,” he points out about Bio-Serum, and it was legal to use for such purpose.
Zingaro’s cure worked. He had many delighted customers, albeit most were like-minded environmentalists. On the Bioscape website, along with the ads for Non-Poisonous and Humane Rodent Control Bait and Sluggo Biorational Slug and Snail Bait, are testimonials from customers like Steven Murch, from the Bradley Architect Group, thanking Zingaro for using a copper and phosphorus mix in a food-oil base to save his dying tree. “Ralph told me the recently discovered fungus, or any pest for that matter, is not the reason the trees are dying,” Murch enthuses.
“Zingaro believes that the farmers can protect their lands without using poisons,” Fairfax Mayor Frank Egger explains. (Fairfax is one of 11 incorporated cities in Marin County) “He’s assisted us in our goals of keeping the poisons out of our community and creeks. Here the Coho salmon and steelhead trout are both listed as endangered species.”
“He stands tall amongst the trees,” offers fellow conservationist, Joe Aliff, who did early work with environmentalist Dr. Orie Loucks on “bleeding oaks,” and says he first saw the syndrome 50 years ago in West Virginia. “That started the Eastern Tree Movement. This isn’t local to California; bleeding oaks are everywhere.” Aliff explains that his interest in the trees is part of his heritage as a Cherokee. “For some people it’s a sideline,” he says, “but it’s natural and obvious to us.”
Obvious, maybe, to Cherokees and conservationists, but apparently not to Marin County District Attorney Paula Freschi Kamena. On Feb. 4, her office served Zingaro with a civil lawsuit, California vs. Ralph Zingaro and Bioscape, charging, among other things, that Zingaro used Bio-Serum as a pesticide, to kill the P. ramorum fungus, and that this use as a fungicide wasn’t legally approved. Additionally, the case charges that offering Bio-Serum was an act of “consumer fraud” in that it didn’t actually work—even though Garbelotto himself would prove that it did. The D.A. is also charging that Zingaro took “unfair advantage” of the marketplace in selling a product that wasn’t approved while other businesses suffered, waiting for a legal solution.
To understand Zingaro’s case, it’s important to note that Bio-Serum, a potassium phosphite fertilizer, is considered by everyone involved to be chemically identical to the product that was finally approved in October 2003 as the sole treatment for Sudden Oak Death. That product, Agri-Fos, was once classified as a fertilizer and re-classified as a fungicide as the result of UC Berkeley experiments about the efficacy of phosphonates against P. ramorum. By using a non-approved product, the D.A.’s office maintains, Zingaro broke state pesticide laws. That he says he was trying to treat tree death, they say, is irrelevant. In their opinion, he was trying to kill a pest.
“Why would I try to kill a fungus I don’t believe exists?” Zingaro argues.
“All over Marin, people fear losing their oak trees. Preying on this fear in order to bilk people of their money is despicable,” the Marin D.A. said in a statement that was aired Feb. 6 on KFTY Santa Rosa news.
D.A. Freschi Kamena never mentions that the cure actually worked, nor that Zingaro has a pesticide license, and could have legally applied hundreds of other toxic pesticides or fungicides if he so chose.
The civil suit demands, among other things, restitution at a minimum of one million dollars and reimbursement of the Marin County D.A.’s office attorney fees.
Originally, the State had included testimony from the scientist credited with isolating P. ramorum as a key witness against Zingaro. Though not directly quoted in the State’s lawsuit, Garbelotto’s recollections were provided by Shawn Spaulding, Special Deputy District Attorney in the Consumer Protection Unit. Why Garbelotto wasn’t directly quoted is unclear. (When contacted, the Marin D.A.’s office refused to comment on the case.) Spaulding tells of Garbelotto’s encounter with Zingaro in 2000, the purpose of which was to conduct some experiments using Zingaro’s three-acre Petaluma ranch. The episode cumulated in Zingaro saying he was going to make phosphonates available to his customers and Garbelotto cautioning him not to.
In a preliminary hearing held on Mar. 5, Judge John A Sutro, Jr. dismissed the Spaulding/Garbelotto testimony as hearsay.
Garbelotto insists he had no real interest in participating in this case. “I’m subpoenaed,” said the scientist, who has been published extensively on plant pathology. He did his undergraduate work at the University of Padua, Italy, received his Ph.D. at Berkeley in 1996 and first garnered recognition for studying chestnut blight in Italy.
Although Garbelotto says he hasn’t seen the Bio-Serum label, he admits that the product and Agri-Fos are likely to be chemically the same: “About a hundred products are. We tested half the products in the world. We picked the one [Agri-Fos] that is the most efficient from the most ethical company. We also had the idea to choose a small company that understood the need for research.”
It took three years from the point Garbelotto identified P. ramorum to the point that Agri-Fos was relabeled from fertilizer to pesticide. Science (and government agencies) moves slowly, as everyone knows. “I have millions of dollars in grants and 25 people working full steam on research,” Garbelotto offers. “My position is to do exactly that.”
During those three years, environmentalists point out, Sudden Oak Death spread: It has been found in areas of Oregon and Washington State. Great Britain has reported infections of bleeding trees. Recently, the California Oak Mortality Task Force posted on their website that 22 tree species are now known to be hosts for the disease and 38 species are known to be susceptible.
Early concerns about Phytophthora ramorum spreading to Southern California proved to be unfounded, but other tree blights hit here. Eucalyptus tree death first appeared in Southern California in 1998, with trees being victimized by a previously unknown pest, a small insect called the Red Gum Lerp Psyllid. Two years later, UC Berkeley professor Dr. Donald Dahlsten imported wasps from Australia and released them in the infested areas to prey on these pests. The wasps took hold but it was too late, according to Gerry Pinnere, Supervisor of Pest Management in the Forest Division of L.A.’s Parks Dept. “The wasps are still out there,” Pinnere says, “but the trees died.” (Dahlsten passed away from skin cancer in September 2003.)
Since the eucalyptus tree death, a fungus seen in Florida and Las Vegas, Fusarium oxysporum, has been found to cause palms to wilt in Santa Monica, Hancock Park and Dana Point, hitting the urban forest in Beverly Hills especially hard. Another pathogen, once seen in avocado trees, Phytophthora cinnamomi, is said to be producing SOD-like symptoms in Southern California oaks. And while scientists still refuse to connect worldwide incidents of tree death, anyone who watched the trees ravaged by Pine Tree Mortality explode into flame in last fall’s San Bernardino Forest fire couldn’t help but wonder. How can bark beetles feeding on dying pines in Southern California be entirely disassociated from bark beetles feeding on dead trees in the north?
Garbelotto insists it’s more complicated than that. “This is a serious pathogen, not a secondary organism,” Garbelotto explains about P. ramorum. “In San Bernardino, the issue is overcrowding of the forests. There is a scarcity of resources for the trees to grow. These trees are starved from lack of light and nutrients in the soil, and the trees are weakened by root disease. The oaks were not overcrowded up here; they were weakened by the pathogen, and the beetles could sense it and went in.”
Though one product has been deemed effective against Sudden Oak Death, Garbelotto’s research is ongoing. The press has rushed to declare that Agri-Fos is a cure for Sudden Oak Death, but others are more careful. “It appears to have some efficacy against the disease,” said Marin Deputy Agricultural Commissioner Fred Crowder, who is also a key witness in the government’s case.
In an article in UC Berkeley News dated October 2, 2003, Garbelotto noted that the treatment does not kill the pathogen, but that it stops its growth if used in the early stages of infection. The article also points out that phosphites have been used for more than 10 years as a relatively non-toxic substance.
The Bug in the System
If Berkeley’s information sounds like Zingaro’s argument, well, it almost is. Berkeley says the phosphate product appears to arrest the growth of the fungus; he says, of course, replacing missing essential nutrients will produce that, and other, desired effects. Hence, under Zingaro’s system, both the tree and the now-harmless fungus will live.
Tree owners, conservationists and Zingaro supporters, meanwhile, are growing increasingly angry. Research your heads off, they plead, but give us something that can save our trees. Even Garbelotto admits that, as regards Sudden Oak Death, the “cure” came too late. The trees that are the sickest will probably die.
Commenting on the case, NRDC spokesperson Jonathan Kaplan took a different position. “If anything, this case underscores the government&Mac226;s need to be more responsive in fast-tracking alternative, less toxic products to treat these problems with our trees.”
“I have defended and prosecuted unfair competition claims and I’ve never seen a claim quite like this one,” says Zingaro’s attorney, Bari Bonapart. “Usually you see people being sued for offering a product that doesn’t work. But I’ve never seen anyone sued for offering one that does work.”
“Personally, I see it as harassment,” says Virginia Souders-Mason, one of the founders of the Beyond Pesticides Coalition.
“I would have thought the county would have been exalting Ralph for curing all those trees, and been delighted to have somebody on the scene who really cared,” says Joe Aliff.
“Obviously they didn’t like Zingaro’s pesticide-free approach,” offers Fairfax Mayor Egger, who authored his city’s Neighbor Notification Law, requiring 48 hours notice to your neighbors before you spray pesticides in the area. “He’s being harassed by the county agricultural commissioner, Stacy Carlson. Fairfax has had run-ins with Carlson, too. The County [Marin] is not happy with our pesticide ban and is working to overturn our ordinance. Zingaro has tried to assist our town in remaining pesticide free. So it’s pretty much no surprise to me that the county would go after this guy.”
Actually, it’s impossible to know which of Zingaro’s activities irritated the D.A.’s office the most. There were, in fact, so many.
To begin with, there was an ad—a starring piece of evidence in the D.A.’s case. Bioscape ran the ad for short time in 2000. It featured an ambitious claim that Bio-Serum had a “curative” effect on SOD, which the D.A. charges constituted consumer fraud. County officials served Zingaro with a “Cease and desist” order, demanding that he pull that ad. “We immediately complied,” recalls Zingaro’s partner, attorney Alex Choulos. “We never ran it again.” (Though UC Berkeley scientists were experimenting with phosphonate fertilizers as a treatment for the fungus, Agri-Fos had not yet been approved.)
“That may be true,” Commissioner Carlson admits, “but he did other things that constituted breaking the law. He was applying this material where others did not and they couldn’t compete fairly as they were waiting for a product that was legal.”
Then, Zingaro posted to websites. In November 2001, Zingaro posted this message to an SOD newsgroup: “Our beloved trees are not dying from a fungus or a beetle, rather they are dying from good old fashioned cumulative effects of air pollution. Sadly, Ralph Zingaro.”
This rang alarm bells at Berkeley, where they had garnered much publicity for isolating that fungus and had received millions in grants. In reponse to Zingaro’s post, Berkeley staffer and SOD task force member Nicole Palkovsky posted: “Several of you have expressed concern about this page. How shall we respond?” (Palkovsky declined to be interviewed, saying she no longer works with SOD.) Another post to the same group reads, “Be cautious with this guy.”
Zingaro also gave interviews. In 2002, he was quoted in the Pacific Sun: “Most declining trees don’t have Phytophthora. They are declining without it, because soil acidity, which leaches calcium and makes phosphorus unavailable to trees, is killing the roots. The reason that phosphite works is because it forces the tree to grow roots fast.”
Others insist that Zingaro was just in the wrong place at the wrong time and that this is not the first instance in which Freschi Kamena failed to serve her constituents. A campaign to recall the D.A. was initiated in 2000, in response to her supposedly overzealous prosecution of medical marijuana users. (The election was held and by a huge margin Freschi Kamena retained her office.) Rulings by the Marin County family courts have been the subject of probes, and allegations of “cronyism.” Complaints about the courts in Marin reached State Attorney General Bill Lockyer, who called them “substantive and serious” in the Marin Independent Journal.
More Pests in Paradise
Ask Zingaro why he’s a defendant in a case about SOD; he’ll say he honestly doesn’t know: “All I was doing was feeding nutrients to trees.”
Why would the county sue Zingaro four years after he pulled the questionable ad and six months after it became known that the product Zingaro used is probably the same as the one currently approved? “No one had any qualms about using it as fertilizer,” Commissioner Carlson says. “It was registered and available to be used that way and I can’t argue with that logic. But, you cannot advertise it or use it as a pesticide. If you want to claim it controls disease, it has to be regulated.”
In addition to asking more than one million in damages, the suit initially sought to enjoin Bioscape from falsely advertising that they can cure SOD. But at the Mar. 5 hearing, Zingaro’s attorney argued, “They already did this years ago. The county is asking for conduct to be stopped which has already stopped,” and the court agreed.
“Injunctive relief...cannot be used to enjoin an event that has already transpired,” Judge Sutro ruled.
In that same hearing, the D.A. also sought to prevent Zingaro from using his professional trademark caricature—a doctor with a stethoscope around his neck—or from calling himself (as he does) a “Plant Doctor.” Bonapart argued that this was “a blatant prior restraint on free speech,” pointing out that Zingaro, who owns the trademark “plant doctor,” had the legal right to use it. The court ruled that Zingaro could continue to call himself “plant doctor” as long as he didn’t include his California pesticide license number alongside the title
“The funny thing is, they were saying that people would see that and believe he’s a Ph.D,” Bonapart laughs. “I don’t know who they think lives here in Marin, but we can’t be dumb enough to think a Ph.D. uses a stethoscope.”
Zingaro says that he and Garbelotto might disagree about the causes of SOD, but denies it’s a feud, saying only, “I guess someone doesn’t like me.” He denies any possibility that UC Berkeley might be involved in any way. “Garbelotto came here and we did some experiments and I thought we had agreed to disagree. Anyway, I never saw any pathogens die, not that it would have changed my opinions about soil acidification being the primary cause.”
Similarly, Garbelotto says that he bears Zingaro no ill will and refutes the idea that a university would elect to get involved in the D.A.’s lawsuit. He acknowledges, though, “There were red alerts. But I don’t think there is anything organized against Ralph. Certainly his ways are unorthodox. He claims he is an environmentalist, but his company makes a lot of money. It was my decision not to work with him. I don’t work with anyone who has a vested interest.”
“They’re certainly no General Motors,” attorney Bonapart laughs, indicating that Bioscape is a two-partner company (Zingaro and attorney Alex Choulos) with a website, three employees and organic plant food and fertilizers stored in two outbuildings on the property where Zingaro also lives—hardly a corporation that could absorb a million-dollar fine.
Did Bioscape commit consumer fraud? Interestingly, the lawsuit is stunningly absent of dead trees. There are a few customers who feel they were charged too much by Bioscape, or that maybe their trees were treated with nutrition that was not needed, but there are no dead trees. California vs. Zingaro is over a treatment that worked, and actually has more to do with why it worked, and who gets to say it worked. Hanging in the balance are state-issued pesticide licenses, future products like Agri-Fos with the legal rights as the sole “cure” and millions in research money. More trees will probably die while this is sorted out.
Garbelotto is now working in Southern California tree mortality, studying Phytophthora cinnamomi, a disease that’s killing oaks in the L.A. area, and in San Diego on Pine Pitch Canker and root rot. His belief is that “these are all different microbes that are carried in different ways.”
Northern California environmentalists bravely insist that their radical stance against pesticides is necessary to help save not just trees, but also people—and that Southern California is lagging far behind in this issue. Marin County has the highest rate of breast, prostate and skin cancers in the country. “There’s something wrong in paradise,” Souders-Mason explains. “Exposure to all these chemicals is part of the problem. That’s why Beyond Pesticides was created, to request a 75 percent reduction in all pesticides and a total ban on EPA-classified Class One and Class Two substances. It was supposed to be met by 2004, but it was met in 2003.”
Mayor Egger heartily agrees: “Carlson claims he’s concerned about poisons being used, but at the same time he isn’t recommending that the county goes pesticide free.” (Fairfax is so serious about controlling pesticides, the city even maintains a community website, Safe2use.com.) “If I were a county supervisor, I’d be looking to replace this guy. San Anselmo was trying to enact Neighbor Notification like we have, and the County Agricultural Department attended their meetings and threatened lawsuits to overturn the ordinance.”
Others say if the courts should rule against Zingaro it would set environmentalists back 30 years. “If I knew a way to feed and save trees and also knew it might result in a lawsuit like this, I’d just let everything die,” said one source who didn’t want to be named.
Of course, it’s easy to imagine that Zingaro, the self-described die-hard, organic arborist, probably stepped on a few toes on his way to feed the trees. Souders-Mason speculates about this: “Personality wise, he’s bombastic. It’s ‘my way or the highway.’ Can he be irritating? Definitely. He’s strident but he’s an entrepreneur. I’m sure Bill Gates is the same way. People who are ahead of the curve are strident because they know more. And they get knocked down. And that’s what’s happening here.”