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Managing herbicide drift and liability

Laura Handke for Progressive Forage Published on 27 April 2018
court proceedings

As temperatures rise, many producers are revisiting pest management strategies and practices after a record number of herbicide drift-impacted acres were reported from 2017’s growing season.

With the 2017 drift debacle top-of-mind going into the 2018 growing season, it is important to know the proper channels to navigate the matter of identifying and reporting drift-affected acres and the measures necessary to mitigate losses from both a grower and applicator perspective.

As a collaborative effort of Oregon State University and the EPA, the National Pesticide Information Center compiles and disseminates science-based pesticide and pesticide-related information to help the public make informed decisions. The center shares that knowing where to start and who to call is the first step in determining and assessing drift damage.

And because laws and interpretations vary from state to state, contacting the designated state pesticide agency in the state of the injured crop is essential to beginning an investigation of potential pesticide misuse, drift and off-target impacts.

Texas A&M AgriLife agricultural law specialist Tiffany Dowell Lashmet shares there are several legal actions available to a landowner if pesticide drift occurs, with the most prevalent being negligence.

Negligence, she says, is proven by assessing two factors: whether or not the defendant acted as a reasonable person and whether those actions caused damage to the plaintiff. And although it sounds simple enough, the process of determination is anything but simple.

The burden of proof remains with the plaintiff; four elements must be proven in the determination of negligence: duty, breach, causation and damages, with breach and causation taking precedence in spray drift litigation.

If the jury concludes the defendant acted as a reasonable person, negligence cannot be proven, and the case will be dismissed. Factors commonly considered by the jury in arriving at a conclusion of negligence are whether or not label requirements were followed, wind speed at the time of application and what measures were taken to avoid drift.

Following the guidelines produced by the Agricultural Food and Law Center, comprehensively logging all spray applications to include brand name, date of application and weather conditions such as temperature, wind speed and direction, and the time of day of spray applications of neighboring producers, should be kept by both producer and applicator. Additionally, applicators should also keep label information for each product and note the fields where the product was applied.

In both the defense and prosecution of a spray drift case, documentation is paramount to assessing damages and considering recourse.

Tools additional to written documentation that should be included in every producer’s management protocol include photographs and eyewitness testimony. Photographs should be taken for several days after the suspect application to assess the full extent of damage, as damage may not occur for several weeks after application.

Should the threat of drift injury be one a producer feels is imminent, photographs of the condition of the threatened crops should also be collected prior to the neighboring spray application, as damage can present with rapid onset after pesticide contact.

Eyewitness testimony will also help to corroborate and solidify key details. Again, no matter from whom recovery is collected, thorough documentation will be the most pivotal component of securing compensation of damaged acres or defending a spray application.

Determining liability

Federal law, 7 USC 136j(a)(2)(G), imposes a farmer or applicator must take precautions to avoid causing spray drift and can be held liable for allowing careless application. If negligence is proven, and the application is deemed to have broken the law, the determination of a liable party is necessitated.

If the applicator and producer are one and the same, liability is one of little discussion. However, the issue becomes much more complex when multiple individuals or entities are involved in the application in question. If application services were hired, the question of employment versus contractual labor becomes one of relevance, and the liability may shift to the contractor responsible for application.

“The starting place for any discussion of liability for an independent contractor’s actions,” says Lashmet, “must always be to determine if the person is, in fact, an independent contractor as opposed to an employee.”

The Texas Supreme Court defines an independent contractor as “any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details.”

In such cases, the independent contractor, not the landowner, is responsible for the ill effects of drift from application and can be held liable in litigation. One very important caveat does exist: If the work a contractor is hired to do is considered “inherently dangerous,” the landowner will assume liability. The answer to the question of whether or not the application of pesticides and herbicides is inherently dangerous is state-specific.

As of 2017, Alaska, Mississippi, New Mexico, Missouri, South Carolina, Arkansas, Massachusetts, California, Arizona and Georgia have all declared spray applications to be inherently dangerous.

Minimizing risk

The best way to minimize the risk of drift is to use common sense before and during application by following these tips:

  1. Read and follow the label on herbicides and pesticides used.

  2. Pay close attention to wind speed and direction at application.

  3. Know what is planted in neighboring fields and consider those crops when making herbicide and pesticide decisions.

  4. Do your research to ensure the applicator you hire is licensed, insured and diligent in taking safety and cautionary measures to control drift.

  5. Check your insurance to ensure it does not limit coverage for application of herbicides and pesticides.

  6. Familiarize yourself with the EPA’s Drift Reduction Technology.

  7. Be a good neighbor and environmental steward. Keep neighboring operations, drainage ditches and bodies of water in mind when spraying.

With the threat of vaporization and the uncertainty surrounding new and effective herbicide and pesticide options, having thorough application protocols in place is exceedingly important. And should drift occur, talk with the affected landowners, be responsive and open to communication, and you may find conversation is the best means of avoiding litigation.  end mark

ILLUSTRATION:  Illustration by Corey Lewis.

Laura Handke is a freelance writer based in Kansas. Email Laura Handke