Sprayed trespass

Injunction in Delta County sets precedent for other counties

Elizabeth Miller | Boulder Weekly

A recent decision from a district court in Delta County could affect the view of trespassing, aerial spraying and the restitution available to farmers who lose crops due to drift.

Judge Charles Greenacre ruled in the case of a pesticide drifting onto an organic farmer’s property that the plaintiffs, and the public in general, have an interest in not having their property invaded by third persons or things. In this case, the invader was a pesticide, used to spray for mosquitoes, that crossed into a neighbor’s organic farm, compromising that farm’s organic certification and the health of the farmer, who had chosen to grow organically on the recommendation of his doctor. The judge granted a permanent injunction, ordering the defendants only to spray with proper licensing, in accordance with label directions, with properly calibrated instruments, not within 150 feet of the plaintiffs’ property and only when the wind direction and speed would not cause drift onto the plaintiffs’ property.

Every week, the defendants, James and Georgia Hopper, had been spraying Fyfanon ULV Mosquito Insecticide, which contains malathion. At high doses, malathion, an organophosphate, can overstimulate the nervous system and cause nausea, dizziness or confusion and, in extreme cases, convulsions, respiratory paralysis and death, according to the Environmental Protection Agency.

The defendant used a fogger to spray Fyfanon mosquito insecticide over a 300-foot swath of ground. Under certain wind conditions Fyfanon can drift as far as 1,000 feet, according to the lawsuit.

Plaintiff Gordon MacAlpine has registered as a pesticide-sensitive person with the Colorado Department of Agriculture, and posted notices to his neighbor about his health condition and the status of his organic farm.

“Its our hope that all sprayers around the state of Colorado will look more seriously at whether their activities caused the spray to drift onto other properties, which our case makes clear is a trespass,” says Boulder attorney Randall Weiner, who represented the plaintiffs.

Weiner says he believes that this case will go a long way toward making aerial applications of pesticides or herbicides a liability for collateral contamination.

“I also think that any agency or individual who aerially applies pesticides or herbicides, by airplane or helicopter, is being reckless and is opening themselves to liability for trespass because of the high potential for collateral contamination, especially if such contamination impacts organic farms,” Weiner said in an email.

Weiner argues that this case changes the notion of who, and what, can trespass. It’s no longer only a person walking onto private property — it’s tiny droplets, a mist.

The ruling could, he says, have implications in other venues — like questions around genetically modified seeds spreading or groundwater contamination — but county officials hesitate to speculate on that.

The focus in Boulder County, according to Adrian Card, Boulder County’s extension agent from Colorado State University, is on cutting these issues off before they sprout by keeping communication open.

“In the agricultural community, we’re doing a pretty good job of neighbors knowing each other as much as possible and understanding each others’ needs, trying to foster more of a proactive, communicative, considerate interaction,” Card says.

Colorado Department of Agriculture pesticide division staff echo that — farmers do what they can to cooperate.

There are instances where communication breaks down, Card says, or products are applied off label, or something in the application goes wrong, and the problems can go both ways.

“There’s instances where organic farms can contribute to weed population in the area, so it’s not always a one-way perception of harm,” Card says.

The Colorado Department of Agriculture fields about 50 complaints a year about improper use of pesticides, perhaps half from alleged pesticide drift, says John Scott, pesticide program manager for the CDA.

The CDA’s enforcement centers on the rules for the pesticide outlined on the federally approved label on the pesticide. Its review of the situation with MacAlpine and the Hoppers showed no label violations.

“That particular product is designed to actually drift for mosquito control,” Scott says. “Adulticide products for mosquito control, they are inherently designed to actually drift in the air column and come in contact with the mosquitoes.”

In situations of misuse, unsafe use or a label violation, the CDA can issue cease and desist orders for first time offenders and, in the case of commercial users, levy civil and monetary penalties. But they don’t pass on restitution to the farmer who filed the complaint.

“The department’s role is specifically to determine if there is a violation of the Pesticide Applicators’ Act,” Scott says. “We don’t have the ability or the authority to pass on any type of damages to the complainant.”

Though complainants have always had the option to go to court, the lawsuit sets a precedent for an injunction to prohibit pesticide spraying, even when not a label violation, that interferes with a neighbors’ use of the property.

Federal pesticide laws already prohibit spraying on other peoples’ property, says Conrad Lattes, a Boulder County assistant attorney, and the county doesn’t view the case as remarkable.

“It shouldn’t be different than any other nuisance or trespass case, that you can’t interfere with your neighbors’ enjoyment of their property,” Lattes says.

“The county’s right, the label already protects folks,” Weiner says. But “practically speaking, to really protect farmers and organic farmers you’re going to need strong court protection, and as far as I know this is the first time in the state of Colorado the court has stepped in and provided that protection.”

Weiner has dealt with a client whose farm was inundated and the label didn’t offer protection. The case also sets precedent for getting an injunction, and the use of trespass laws, rather than referring to labeling laws on pesticides, allows for plaintiffs to receive damages.

The burden of proof will still fall to the plaintiffs.

In this case, plaintiffs MacAlpine and Rosemary Bilchak had evidence that included photographs of the defendant spraying and test results from the Colorado Department of Agriculture, which had taken samples from both the plaintiffs’ and the defendants’ properties. Tests came back positive for malathion, even in the plaintiffs’ home.

“That didn’t stop the defendants from trying to make us prove that it was their product; even in our slam dunk case the defendants were trying to say the chemical wasn’t from their property,” Weiner says. No one else had been spraying for mosquitoes, and the defendant admitted to spraying.

“Everybody’s going to have to prove where the pesticides came from,” Weiner says.

In the ’90s, Weiner represented Colorado Citizens Against Toxics in a suit against Boulder County for spraying the herbicide tordon from helicopters and won increased buffer zones around the water sources for the town of Superior. The judge didn’t award an injunction that year, but shortly thereafter, the county stopped aerial spraying, a move that Weiner says felt like a political victory.

As a district court decision, the case is only a precedent, not a controlling decision, but it echoes similar decisions from judges in other states.

In 2011, a judge in the Minnesota Court of Appeals came to the same conclusion and found pesticide drift to be a trespass.

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