This post is not legal advice. See here for the site’s reposting policy. This appeared originally in the Delmarva Farmer week of July 24, 2017 and in Lancaster Farming on August 5.
Damage caused by pesticide drift has been in the news a lot over the past couple of years. With Monsanto releasing new varieties resistant to a new less volatile formula of dicamba, many states have seen an increase in reports of drift damages. At the winter agronomy meetings, I discussed what type of liability an applicator might face if a neighbor complained of drift damage, but what should you do if you suspect drift damage in your fields. An injured producer should contact the state department of agriculture to investigate, begin developing evidence of the damage, and consider working with the applicator/neighbor to settle the damage or consider hiring an attorney to pursue a lawsuit in court. Understanding how to handle drift damage can help the injured producer understand his/her rights in this situation.
In a majority of states, the state’s department of agriculture governs pesticide applications in the state. In Maryland, the Maryland Department of Agriculture governs pesticide applications in the state. Immediately report the drift damage to the department of agriculture to begin an investigating the potential violation. The state will investigate the potential drift incident, interviewing the applicator, witnesses, and other parties, collect samples, review records, and collect other evidence. If the state finds a violation has occurred, then the state can impose fines against the applicator. These fines will not be the same damages paid to the injured producer for crop damage. These fines will go directly to the state. It is important to note; this process can take time and can be frustrating to the injured producer.
What else can you do besides contacting the appropriate state agency? Begin to document the damage. Take photos that demonstrate the damage and take samples of damaged crops and damaged other plant life. If you know the date, the application took place, document the weather conditions on that date (such as temperature, wind speed, and wind direction). Ask neighboring landowners if they witnessed any recent applications in the area. The more documentation an injured producer has will assist down the road.
Once the injured producer has an idea who caused the drift, the producer may want to consider trying to deal with the issue outside of court. Working outside of court may help you preserve relationships with neighbors. One way to do this might be stopping by to talk with the neighbor about the drift damage. Another option, for those in Maryland, would be to contact the Maryland Department of Agriculture’s Agricultural Conflict Resolution Service (ACReS) program. ACReS is a USDA-certified agricultural mediation program. Mediation is an alternative process to settling disputes outside of court, potentially saving money in legal expenses, be settled efficiently, and preserving relationships with neighbors.
The injured producer can also consider contacting an attorney to file a civil lawsuit in court. Any damages awarded in court would go to compensate the injured producer for the drift damage. The documentation developed early on would be useful to the injured producer when going to court. If the injured producer takes this option, the producer should discuss options with an attorney. It is important to note, as the state’s investigation of a violation going to court can be a long process.
When faced with potential drift damage, an injured producer should contact the respective state department of agriculture to report the damage, begin developing documentation to show the damage, consider working outside of court with the applicator, and consider contacting an attorney to file a civil lawsuit.