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Legal Notes: A civil lawsuit should be the last option as this can be costly and time-consuming.

Paul Goeringer

April 22, 2019

3 Min Read
Closeup of soybeans with dicamba drift damage
REPORT DICAMBA DAMAGE: If you have an issue with dicamba drift damage, the first step is to document the damage. Then, report the damage to the proper state authority.

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.

Gather evidence

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.  

Avoiding court

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.

About the Author(s)

Paul Goeringer

Paul Goeringer specializes in legal risk management as it relates to agriculture. Prior to coming to AREC, Paul worked at the University of Arkansas where his legal research was focused in the areas of environmental compliance, right-to-farm laws, agricultural leasing laws, contracting issues, federal farm program compliance, recreational use and agritourism issues, and estate planning issues in agriculture. Through this research Paul developed educational materials to better help Arkansas’s agricultural producers understand and manage legal risks in their operations. Since joining AREC, Paul has worked with county extension educators to begin to fill the void in the areas of agricultural leasing and legal issues in estate planning. Paul is also looking at modifying his existing research in the areas of environmental compliance, right-to-farm laws, and federal farm program compliance to benefit Maryland’s farmers. Paul is a graduate of Oklahoma State University with a B.S. in Agricultural Economics, the University of Oklahoma with a Juris Doctorate, and the University of Arkansas with an LL.M. in Agricultural Law and an M.S. in Agricultural Economics. Paul is licensed to practice law in Oklahoma and is a member of the Oklahoma Bar Association, the American Agricultural Law Association, the Southern Agricultural Economics Association, and the Agricultural and Applied Economics Association.

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