The Texas Supreme Court issued an opinion in Helena Chemical Co. v. Cox, a case pitting cotton farmers against an aerial herbicide applicator. [Read opinion here.]

Tiffany Lashmet, Texas A&M AgriLife Extension law specialist, takes a look at the case in her latest Texas Agriculture Law Blog and provides four takeaways producers should consider regarding herbicide or pesticide applications and drift claims. While the background and tips are listed in this article, please refer to her blog to read more about the litigation and Texas Supreme Court opinion.

Background

Plaintiffs grow cotton in Mitchell County, Texas. They allege that defendant, Helena Chemical Company (“Helena”), supervised aerial application of Sendero, a herbicide primarily used to kill mesquite trees, on the Spade Ranch. Plaintiffs claim that the Sendero sprayed on the Spade Ranch over several days in 2015 and 2016 drifted and damaged their cotton crops. They blame this drift for reduced yields on over 14,000 acres of cotton across hundreds of miles in Mitchell County. The plaintiffs gathered only “limited evidence” of the damage at the time it was noticed and at the time of harvest. Many of the plaintiffs filed insurance claims attributing their crop losses to drought or other adverse weather conditions. The fields they claim were damaged are located between 1.8 miles and 25 miles from the locations on the Spade Ranch where Helena sprayed the Sendero. The Court noted that location of the fields “follows no discernable pattern” noting that “some fields are bunched together, while some are isolated many miles.”

The plaintiffs claim, and Helena does not dispute, Sendero is highly toxic to cotton plants, and should only be applied with the risk of drift is minimal, which is stated on the label. The plaintiffs allege Helena did not follow the label instructions and instead sprayed when weather conditions, including wind, temperature, and humidity, were problematic. They also allege the Sendero was sprayed at too high of an altitude, resulting in drift.

After Helena’s application, the plaintiffs filed a complaint with the Texas Department of Agriculture (TDA). A TDA inspector investigated and found the Spade Ranch application of Sendero was a possible cause of their crop damage. He found “markers” for aminopyralid and clopyralid, the active ingredients in Sendero, but was unable to find a consistent pattern or drift pattern of crop damage over the large area where the fields were located. TDA’s inspector conducted a visual inspection but did not conduct any laboratory tests. When deposed, the inspector could not explain the difference between “markers” for aminopyralid and clopyralid.

Key Takeaways

This Opinion offers a thorough analysis of a herbicide drift case, offering insight to future plaintiffs and defendants alike into how a court will analyze such cases. There are a couple of takeaways that strike me.

First, note that the plaintiffs reported the damage to TDA, and a TDA inspector did an investigation and prepared a report. Two important things here. First, TDA does not recover monetary damages for injured parties when alleged drift occurs. It is up to the injured parties to proceed against the party who allegedly applied the drifting herbicide. Second, note that the TDA inspector did not take any laboratory samples as part of his investigation. This is a good reminder for those who may be damaged by drift to consider taking their own samples and having them tested.

Second, if a farmer believes there is drift damage to a crop, it is critical that he or she take care to document the damage. This includes taking photographs and samples of the damage when it is noticed, but also critical is to document yield damage at harvest. For example, in some cases, this may require segregating out the damaged crop from the remainder of a farmer’s harvest to show the yield damage. Another point that seems relevant to this case is the fact that some of the plaintiffs filed crop insurance claims seeking indemnity for yield damage caused by adverse weather conditions. In a situation where a plaintiff may want to file a drift damage claim, he or she may want to consider whether or not bringing that type of insurance claim is something they want to do.

Third, it is almost always difficult to prove causation in a herbicide drift case. Being able to show that damage occurred, and that such damage was the cause of a specific chemical sprayed by a specific defendant can often be challenging. This case offers a good explanation of the various elements of proof that must be shown in order to prove this type of causation.

Fourth, for anyone applying herbicide, this case is a good reminder of the importance of having liability insurance that covers the application of herbicides. This is true for a landowner doing the application himself or herself, or for anyone who may be hired to apply herbicides on behalf of another. Carrying liability insurance is critical as it provides insurance money for covered claims but also because it obligates the insurance company to provide a defense in a situation where a drift claim is filed. This means the insurance company would hire a lawyer to represent the insured in litigation over a covered claim.

One important item to check on any farm and ranch insurance policy is to determine whether herbicide application is covered, whether there are any limits on the type of application covered (i.e. some policies allow coverage for ground application but not for aerial application), and whether there are any limitations on the amount of coverage. Some $1 million farm and ranch policies impose caps on coverage for pesticide or herbicide drift at much lower levels, $25,000 for example. Before applying pesticide or herbicide, take the time to review any potentially applicable liability insurance policies.

Source: Texas Agriculture Law Blog