As reports of damages stemming from dicamba drift increase, questions swirl. Just what is the problem? Who’s responsible? What can be done to prevent future damage? While there are not yet clear answers to many of these questions, let’s review the general legal principles that apply to herbicide drift and discuss how they apply to the current problem.

Pesticide applicators and manufacturers are regulated by both state and federal law. Iowa Code chapter 206 governs the use of pesticides in Iowa. The definition of “pesticides” includes herbicides designed to control weeds. The law tasks the Iowa Department of Agriculture and Land Stewardship with licensing and regulating pesticide applicators.

Even those applying pesticides to their own land must obtain a license before applying restricted use pesticides. Commercial applicators must also submit evidence of financial responsibility. IDALS additionally regulates the distribution and sale of pesticides within the state, although federal law also applies.

Regulatory framework, federal and state
The Federal Insecticide, Fungicide and Rodenticide Act authorizes the Environmental Protection Agency to regulate the sale, use and distribution of pesticides. EPA is responsible to register new formulations of chemicals throughout the United States. States are allowed to implement more restrictive laws or regulations with respect to the use of pesticides. They can also pass laws consistent with FIFRA. They cannot, however, create labeling or packaging requirements "in addition to or different from" those imposed by FIFRA.

Pesticide drift occurs when the chemicals land outside of the target area. When farmers suspect their land or crop has been damaged because of pesticide drift from a neighboring farm, they should consider two courses of action. First, file an “incident report” with IDALS’ Pesticide Bureau. Second, they should consider whether to pursue a private action to recover damages.

Once an incident report is filed, IDALS will decide whether to open an investigation to determine if a pesticide was misused, or if any state or federal law was violated. Farmers must file incident reports within 60 days of the date of damage and before 25% of the crop has been harvested.

Steps state can take to enforce law
Depending on the results of the investigation, IDALS may initiate enforcement actions, which can result in any of the following:
• notice of violation
• official notice
• civil penalty on commercial applicators of up to $500
• pesticide license suspension or revocation
• referral to EPA for review and enforcement action
• license or certification suspension or revocation
• product stop sale, use or removal order
• crop embargo or detainment

IDALS may find a violation, for example, if the applicator operated in a “faulty, careless or negligent manner” or “made a pesticide recommendation or application inconsistent with the labeling.” While IDALS can impose civil penalties, it does not have the authority to collect damages on behalf of private landowners. The enforcement action may provide helpful evidence to a landowner, but the landowner must initiate a private legal action to seek monetary damages against the parties responsible for the harm — if parties who caused the harm are not willing to pay for the damage.

Already in 2017, IDALS has received a record number of incident reports of crop damage stemming from pesticide misuse. About half of the 250 or so complaints in 2017 are dicamba-related. Although this Iowa number isn’t as high as the number of complaints in some other states, it continues to climb.

Private lawsuits can be filed
Farmers injured by pesticide drift may bring private legal actions to recover damages. Depending upon the facts, such lawsuits may be brought against the applicator, the manufacturer or both. Several legal causes of action may be included in such lawsuits, including claims of negligence, nuisance, trespass or strict liability, as well as allegations of statutory violations.

The primary cause of action against an applicator is generally negligence. If the landowner can prove damage caused by the applicator’s failure to use reasonable care, the action will be successful. Negligence can be proven, for example, by showing that the applicator did not follow the directions on the label, use the pesticide in the manner for which it was intended, or apply the chemical in a careful manner, taking into account weather and other key factors.

To prevail in a negligence action against the manufacturer, a party who has been damaged must, for example, show that the manufacturer did not use reasonable care in its marketing, labeling or distribution of the product. Negligence claims can also include allegations of product defects and failure to warn, although manufacturers can sometimes be found responsible for a manufacturing defect under a strict liability standard, even in the absence of proof of negligence.

How does law apply to current situation?
Although dicamba has been around for decades, its use was restricted. Because of its volatility or tendency to spread uncontrollably beyond its targeted area, dicamba was not approved for postemergent use. Because of the increasing resistance of many weeds to glyphosate (Roundup), however, manufacturers such as Monsanto, BASF and DuPont have been working to reduce the volatility of dicamba, which is highly effective against difficult weeds. As part of their system, they developed genetically modified versions of soybeans and cotton that are dicamba-tolerant.

Last year, EPA approved certain formulations of dicamba for use over the top of these dicamba-resistant varieties of soybeans and cotton. These weed control systems were marketed for use during the 2017 crop year.

The implementation has been less than seamless. Thousands of acres of crops have been damaged this year due to dicamba drift, and the various parties are pointing fingers. In some cases, the manufacturers are asserting that the applicators have not followed the specific instructions given for the use of this chemical or that they are using unapproved formulations of dicamba. Applicators and their insurers allege that despite using reasonable care, dicamba drifted to neighboring fields or pastures, harming crops, fruit and trees.

Some scientists contend that dicamba is prone to vaporize, or turn from a liquid to a gas during warm weather, even when label instructions are carefully followed. This vapor, they contend, can insidiously travel several miles to harm non-dicamba-resistant crops, particularly soybeans. The farmers suffering loss are left with no easy remedy. 

More lawsuits likely to be filed
Already, multiple lawsuits have been filed, and many more are sure to follow. These include class actions, as well as individual lawsuits. Much like we have seen with the Syngenta litigation, these actions will likely drag on for years. The questions are complex and facts will continue to emerge. Further regulatory action will likely ensue.

Farmers damaged by pesticide drift should promptly contact IDALS at 515-281-8591 to initiate an investigation. They should also contact the manufacturer to report the injury. Monsanto has asked farmers to contact them at 844-RRXTEND immediately with reports of leaf cupping. They will send an agronomic specialist to evaluate the damaged field. Farmers facing damage should also consider hiring legal counsel to assist them in assessing their legal rights.

In some cases, private settlements may be reached without resorting to a lawsuit. As the facts shake out, legal remedies may become more apparent. In the meantime, those farmers with damage need to protect their rights by documenting and preserving evidence of their claims. Also, keep in mind that federal crop insurance will not cover claims for dicamba drift. Federal crop insurance losses must be due to drought, floods or other natural disasters as determined by the U.S. secretary of agriculture.

We will continue to monitor the important issue of dicamba drift and its legal implications on the CALT website at calt.iastate.edu.

Tidgren is staff attorney and assistant director for the Center for Ag Law and Taxation at Iowa State University. Contact her at [email protected].