Dicamba Drift: What Is It And What Can I Do About It?

There is an increasingly common problem developing in rural communities. Your neighbor sprays their crops with an herbicide or pesticide and all of the sudden your crops become damaged. What is happening? And more importantly, what remedies do you have? The increase in Dicamba Drift cases is bringing more information to light.

What Is Pesticide Drift?

• What does “drift” mean in this context? According to the EPA drift means “the movement of pesticide dust or droplets through the air at the time of application or soon after, to any site other than the area intended.” https://www.epa.gov/reducing-pesticide-drift/introduction-pesticide-drift

Dicamba is a broad spectrum herbicide first approved in 1967 to kill weeds. It has come back into favor due to resistance in some weeds. Dicamba is prone to drift off target. Although the new dicamba-based herbicides are formulated to stay on the application sites, there are still issues with spreading to other areas and damaging surrounding crops, especially if one farmer uses Dicamba resistant crops, but you don’t.

Most drift cases between neighbors rely on negligence claims. It can be difficult to prove the causal link. Some states have accepted the concept of res ipsa loquitor which basically says, “my crops were fine, my neighbor applied pesticide, now my crops are damaged, therefore my neighbors chemical application damaged my crops.” And one state has, for a certain strong pesticide, said that its application is automatically assumed to be the cause of damage.

However, the recent Dicamba Drift litigation is based on product liability. In other words, rather than saying “my neighbor used their pesticide/herbicide wrong causing damage to my crops” you are saying “this company made an inherently bad product that caused damage to my crops when applied by my neighbor.”

Pesticide Drift In Kansas

• Pesticides and herbicides are controlled by the EPA, including strict labeling requirements that must include application information, however certification for people applying them is typically governed by states. For example, in Kansas you can find information here https://agriculture.ks.gov/divisions-programs/pesticide-fertilizer/pesticide-applicator. Applicators must keep strong records of applications, especially of restricted pesticides, specifically including exactly when and where the chemical was applied. General use pesticides typically do not require a certified applicator unless you are compensated for application of the pesticide.
• Kansas allows farmers to register “sensitive” or organic crops to attempt to minimize damage. This allows certified applicators to be aware of sensitive crops when they are preparing application decisions. See information here https://fs22.formsite.com/KansasDeptAg/j1cxjlrcb1/index.html.

What To Do If You Have Been Damaged By Pesticide Drift?

If you feel like your crops have been damaged by drift your first step is to report it to the proper state authority. In Kansas, that involves completing the following form

• https://fs22.formsite.com/KansasDeptAg/j1cxjlrcb1/index.html. Be sure to carefully read the instructions to register the proper complaint. It even provides a way to register an anonymous concern.
• The Kansas Pesticide Law, starting at K.S.A. 2-2438a (https://agriculture.ks.gov/docs/default-source/statutes-pesticide-fertilizer/pesticide.pdf?sfvrsn=10) lays out certification requirements for applicators, fees, and also penalties. K.S.A 2-2457a provides the process for making a claim of damage from pesticide application. A claim must be filed within 60 days after the date of damage was discovered. Failure to do so does not completely preclude recovery, but creates a rebuttable presumption that the damage did not occur as a result of faulty application.

My Neighbor And I Both Have Crop Insurance, Is Drift Damage Covered?

Currently the federal crop insurance program does not cover drift damage. However, if your crops are damaged by something your neighbor does, it is important that you as the owner of damaged crops report the damage to YOUR crop insurance carrier for an uninsured loss adjustment determination. You then have the option to exclude the damaged acres from your actual production history yield calculation.

What Are Other Possible Legal Remedies?

Courts recognize that drift, regardless of conditions and care taken, should almost always be expected. To reach the level of negligence it must be shown that the person doing the application did not follow proper processes and that the failure to follow procedures caused the actual damage. Factors that might be important is the type of chemical being used, is it common or more unusual? What were the weather conditions? Was it exceptionally windy? If so, did the applicator account for it, or stop the application? Did the applicator follow the directions on the EPA label? Some states have found certain chemicals so strong that they have determined that applicators are automatically liable for damage to neighboring properties. This theory is more consistent with the current claims against Dicamba which are following a product liability. In other words, claims are being made that manufacturers have created a product so dangerous that they should automatically be responsible for damages to surrounding crops damaged by its use.

Conclusion

If you believe that your property has been damaged by drift, first, file the appropriate state complaint. Titus Law Firm, LLC is happy to help you through this process and to get some compensation for your damaged crops.