We have just received a ruling by the Massachusetts Superior Court holding that the decision of the Town of Stockbridge Conservation Commission to deny our application to use fluridone to control Eurasian Watermilfoil must be set aside because it is not “based on substantial evidence.”  The court dismissed the ConComm decision describing parts of it as “sophistry,” “rather misleading” and “rather disingenuous.”  Analyzing the four bases for the ConComm decision, the court held:

First, as to the ConComm finding that the use of fluridone would lead to a removal of valuable habitat for wildlife, the Court ruled that “this conclusion is not supported by the evidence . . and is in fact contradicted by the DFW [ Dept of Fisheries and Wildlife,  Natural Heritage and Endangered Species Program] and Dr. Kortmann,  the Commission’s own expert.  “DFW explicitly approved an entire-lake application of fluridone,” the court found.

Second, the Commission had ruled that fluridone used in other lakes had reduced the fish populations there compared to Stockbridge Bowl. The court stated flatly that “this conclusion is sophistry.” Anecdotal reports from local fisherman cannot constitute substantial evidence “particularly in the face of the opinions of DFW and Kortmann, the Commission’s expert.”

Third, the argument that fluridone would inhibit the formation of calcite was “also not supported by substantial evidence, and is rather disingenuous.”  Even Kortmann, the proponent of the calcite hypothesis, has testified that he favored treating a large block of the Bowl with fluridone to check for any impact on calcite formation; and, “the SBA had assented to this recommendation,” the court noted.

Fourth, the Stockbridge ConComm had claimed that there was a lack of studies done on similar lakes, to which the Court stated “this finding is not supported by substantial evidence and is again rather misleading.”  Again, the court found that Kortmann had explicitly testified that it was appropriate to proceed with fluridone even in the absence of further lake studies.

The case is now remanded to the ConComm to issue a permit consistent with this decision and the recommendations of Dr. Kortmann.

Next we shall also have to convince the Massachusetts DEP that our use of fluridone will not violate the state’s Wetlands Protection Act, a finding which DEP has previously made in favor of many neighboring lakes that have been using fluridone for years.

Needless to say, we find this decision gratifying

Richard Seltzer
President, SBA
December 5, 2019