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Ruling Protects Organic Farm from Pesticide Trespass

(Beyond Pesticides, July 10, 2012) In a victory for human health and organic farmers, the District Court in Delta, Colorado granted a permanent injunction last week to prohibit a farmer from fogging for moquitoes within 150 feet of his neighbor’s property or allowing the pesticides to drift, considering this to be a form of trespass. The victory is important for organic growers and others who are frequently under threat of pesticide drift from neighboring properties.

Judge Charles Greenacre determined that an application of the insecticide, Fyfanon, a form of malathion, had drifted, and thus trespassed, onto the neighboring organic farm of Rosemary Bilchak and her husband, Gordon MacAlpine. In granting the permanent injunction, Judge Greenacre decided that: “Plaintiffs have an interest, shared by the public in general, in not having their property invaded by third persons or things. Plaintiffs also have a specific interest in not having pesticides invade their property because such invasions will delay or negate their efforts to have their property certified for the production of organic crops.”

Last year, the Minnesota Court of Appeals ruled that pesticides drifting from one farm to another may constitute trespass, and courts in other states have ruled in favor of organic farmers. Pesticide drift is not only a problem for organic growers. Pesticide drift has recently been suspected in the tree deaths throughout the East Coast and midwest. A 2011 study by the Centers for Disease Control and Prevention’s (CDC) National Institute for Occupational Safety and Health (NIOSH) has found that pesticide drift from chemical-intensive farming has poisoned thousands of farmworkers and rural residents in recent years.

Pesticides can volatilize into the gaseous state and be transported over long distances fairly rapidly through wind and rain. Documented exposure patterns resulting from drift causes particular concerns for children and other sensitive population groups, as adverse health effects such as nausea, dizziness, respiratory problems, headaches, rashes, and mental disorientation may appear even when a pesticide is applied according to label directions. For more information on pesticide drift, read Beyond Pesticides’ report, Getting the Drift on Chemical Trespass: Pesticide drift hits homes, schools and other sensitive sites throughout communities.

Delta County, Colorado is a major center for organic growing. During the hearings in this case, plaintiffs presented testimony from Elizabeth Collins, who manages mosquitoes for the local mosquito abatement district, businessman Ed Tuft, president of Mountain Rim/Leroux Creek Farms, the largest organic farmer/processor in Colorado, Mr. MacAlpine’s oncologist, Douglas Rovira, M.D., and pesticide drift expert Susan Kegley from San Francisco.

Rosemary Bilchak and her husband, Gordon MacAlpine, whose fight against leukemia led them to develop their organic farm, hailed the ruling. “We feel vindicated in our attempts to protect our property and our lifestyle. It has been a long legal battle to be allowed to do a simple thing: Grow our own organic food.” Ms. Bilchak attended Beyond Pesticides’ National Pesticide Forum in Denver, Colorado in 2011 and spoke with experts there as she pursued the litigation.

Randall Weiner, an environmental lawyer, successfully obtained a temporary restraining order, summary judgment and a permanent injunction. He noted that this is the first decision in Colorado treating pesticide sprays as a trespass, let alone one which can be halted by injunction.’

The injunction recognizes that while West Nile Virus, carried by mosquitoes, is a serious public health threat, there are many different ways to manage mosquito populations that do not involve using adulticides that are only 50 percent effective and are likely to be less effective over time, due to mosquito’s developing resistance. Though the injunction does not support finding one form of mosquito management over another, this method of mosquito management is widely considered by experts to be the least effective and most risky response to this important public health concern. Many adulticides, including the malathion in this case, have been linked to numerous adverse health effects including asthma and respiratory problems, dermatological reactions, endocrine disruption, chemical sensitivities, and cancer. Adulticides can also be harmful or fatal to non-target wildlife. A program involving regular monitoring, eliminating breeding sites, and the use of least-toxic methods are the most effect, sustainable, long term mosquito management strategy. For more information on protecting your community from mosquito spraying, visit Beyond Pesticides’ mosquito management tools page.

Source: Law Offices of Randall M. Weiner, P.C. Press Release

All unattributed positions and opinions in this piece are those of Beyond Pesticides.


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