by Annette Stark
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 downThe 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 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, Phytophthora 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 February 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.
~ Deep Fertilizer ~
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
February 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. A preliminary
motion is scheduled for Friday, March 5.
A key witness in the
State’s case against Zingaro is the scientist credited with isolating P.
ramorum. Though not directly quoted in the State’s lawsuit, Garbelotto’s
recollections are provided by Shawn Spaulding, Special Deputy District Attorney
in the Consumer Protection Unit. Why Garbelotto isn’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.
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’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. On 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 where 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 seeks to enjoin Bioscape from falsely
advertising that they can cure SOD. “But they already did this years ago,”
Bonapart points out. “The county is asking for conduct to be stopped which has
already stopped.”
In a March 5 hearing, the
D.A. is also asking for a preliminary injunction, preventing 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.” “The funny
thing is, they are saying that people will 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.” She also
plans to argue that Zingaro, who owns the trademark “plant doctor,” has the
legal right to use it. “That’s just a blatant prior restraint on free
speech.”
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 that 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.
~ Rude Awakenings ~
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.