You may have read about issues related to dicamba and pesticide drift damage. What are your options if you have a damage claim?
With seed companies releasing new varieties with genetic resistance to dicamba and less-volatile formulations of dicamba on the market for over-the-top-applications, states have seen an increase in reports of drift damage.
In early 2018, several claims filed by landowners affected by possible dicamba drift damage had their complaints consolidated into one class-action lawsuit. The first case in the class action will be heard later this year in St. Louis.
I am often asked to discuss with growers what type of liability an applicator might face if a neighbor complains of drift damage. But what should you do if your crops have been damaged?
You should contact the state department of agriculture to investigate, begin developing evidence of the damage, and consider working with the applicator to settle the damage. You may also consider hiring an attorney to pursue a lawsuit in court.
Steps to reporting damage
In most states, the department or agency of agriculture governs pesticide applications. Immediately report the drift damage to the department for that agency to begin investigating the potential violation. The state will investigate the potential drift incident by interviewing the applicator, witnesses and other parties; collect samples; review records; and collect other evidence.
If the state finds that a violation has occurred, it can impose fines against the applicator. These fines will not be the same damages paid to the injured producer for crop damage but instead will go directly to the state.
It is important to note that this process can take time and can be frustrating to the injured producer.
What else can you do besides contact the appropriate state agency? You can begin to document the damage.
Take photos that demonstrate the damage and take samples of damaged crops and other plant life. If you know the date the application took place, document the weather conditions on that date, including 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, the better it will be to prove crop injury.
Once an injured producer has an idea of who caused the drift, the producer should consider trying to deal with the issue outside court, which may help preserve relationships with neighbors.
One way to do this is by talking to the neighbor about the drift damage. In Maryland, you can 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 to settling disputes outside of court, potentially saving money in legal expenses and settling disputes efficiently.
The injured producer can also hire 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.
Documentation developed early on would be useful to the injured producer in court.
If the injured producer takes this option, the producer should discuss their options with an attorney. But this is a potentially long process.
Goeringer is an Extension legal specialist with the University of Maryland. The article is not a substitute for legal advice.