(Beyond Pesticides, January 12, 2011) A Santa Cruz, California, organic herb grower has the right to sue neighboring farm for ‘pesticide drift’. This according to a California’s 6th District Court of Appeal in San Jose which upheld Jacobs Farm/Del Cabo’s right to sue the pesticide applicator, Western Farm Service, and let stand the $1 million damage award a jury handed Jacobs Farm two years ago. The ruling makes it clear that pesticide users can be held liable for pesticide drift.
The decision is significant, agriculture and law experts say, because it strengthens the case for organic farmers or anyone else harmed by pesticides to seek legal recourse – even if the pesticide is legally applied. The county’s deputy agricultural commissioner, Lisa LeCoump, said the court decision against Western Farm Services changes the ground rules, making it clear that a sprayer can now be held liable even if no law is broken. While California state law restricts pesticides from being sprayed on neighboring properties, the law doesn’t deal specifically with pesticides that disperse into the air after application and end up someplace else. Attorneys for Western Farm Service argued that since the company had not run afoul of state law, Jacobs Farm did not have the right to sue.
The Court of Appeals, in its ruling, dismissed that argument. The panel contended that the jury could hold the pesticide company liable for tainting the organic crops at Jacobs Farm. The decision stated that applying pesticides that are likely to drift to other people’s property because of climate conditions can be grounds for damages, even if the user has a permit. County permits set only minimum safety standards and do not excuse pesticide users from their duty to act with caution and avoid applications that pose “a reasonable possibility of damage” to others’ crops.
In 2008, a Santa Cruz jury issued the initial verdict against the company awarding $1 million in compensation to Jacobs Farm/Del Cabo after its herbs were contaminated by pesticides. The jury found that organophosphate pesticides, chlorpyrifos, diazinon and dimethoate, had been sprayed on nearby farms’ Brussels sprouts, vaporized and blew onto the organic farm, making the herbs unmarketable and in violation of organic standards. The crops had to be destroyed. The court ruled that pesticide applications by Western Farm Service resulted in trespass of the pesticides onto Jacobs Farm and were legally determined to be a nuisance depriving Jacobs Farm of the right to use and enjoy the land, caused by negligence on the part of Western Farm Services.
An attorney for Western Farm Services said the decision would “impose a serious burden and concern to the industry.” The attorney maintained that a seller or sprayer of pesticide should not be held responsible for what happens days or weeks after chemicals are safely applied.
Under the organic regulations, only approved pesticides may qualify for inclusion (if they meet the organic standards), and the inert ingredients must also be on the National Organic Standards approved list of inerts. Organic standards under the Organic Foods Production Act have strict standards that limit the use of synthetic pesticides, chemical fertilizers, antibiotics, sewage sludge, genetically modified organisms, and irradiation is prohibited in organic production.
Organophosphates (OPs) like chlorpyrifos have been found to remain in the air at very high concentrations 24 hours after application. Residues remain on plant surfaces for approximately 10 to 14 days. Data indicate that OPs can accumulate in certain crops and persist in the environment. OPs were the first group of chemicals to go through tolerance reassessment under the 1996 Food Quality Protection Act because they are known to pose risks of acute and chronic toxicity to humans as well as wildlife. They are also considered to be the most likely pesticide to cause an acute poisoning.
For more information on organic agriculture and how to get involved, visit Beyond Pesticidesâ€™ Organic program page.
Source: San Jose Mercury News