If you are considering an official complaint or a lawsuit, there are many practical, legal, economic, and social questions to discuss with advisors and business partners or family members.
- Are you satisfied that you have fully documented the situation and that the evidence points to the applicator you suspect?
- What is your history with the applicator you suspect caused the damage? Have there been problems in the past that you were unable to document?
- How will reporting affect the social fabric of your community?
- Weigh the time and costs involved in taking action against the price of inaction—especially if the problem has repeated itself or has affected others in your area.
Sharing concerns or observations with your neighboring farmer(s) is a good place to start. This discussion may turn out to be the only action you need to take. Initiating a state regulatory investigation or lawsuit without first talking with your neighbor is likely to damage relationships.
- Bring along a sample or photos of damage and educational materials to show why you think drift may have occurred. Ask for their input and opinion.
- Avoid direct accusations and assumptions of fault. Your neighbor may not be the source of your drift damage.
- Your neighbor may have hired a commercial applicator to apply the product.
- Roadside spray programs, golf courses, and landscapers also use these chemicals.
- Some herbicides can enter your production area in composts, grass clippings, hay, and even manure in some cases.
- Your neighbor may also genuinely not realize he is causing damage to your crop.
- Farmers and professional applicators tend to be less familiar with temperature inversions and their effect on drift. (Bish and Bradley 2017)
- New formulations of 2,4-D and dicamba have been marketed as “low-volatile” products less likely to move off-target. Farmers using these products may perceive less risk, but volatility is still possible, and the risk of other drift mechanisms is unchanged, including spray particle drift and contaminated runoff following a heavy rainfall.
- Once made aware, a farmer may be able to avoid future problems by changing their spray nozzle size or crop rotations, by switching herbicide formulations or brands, or by incorporating more integrated weed management strategies.
- Taking along an impartial third party might be advisable in some situations.
- Your neighboring farmers may have liability insurance that could cover your losses if the application error was the result of ordinary negligence rather than a failure to follow label directions and application rules. Don’t rush to demand this before getting all the facts, but it is possible to resolve these problems through a neighborly agreement that involves insurance. Be aware of a few insurance issues though.
- Owners of the farm where drift originated should contact their insurance adjustor immediately. This will allow insurance companies to investigate the claim for themselves. Quick action is important and in the farmer’s best interests. If the insurance company denies a claim due to late reporting, a farmer may be personally liable for the damage to neighboring crops.
- Many farms carry a limited amount of spray liability coverage ($50,000-100,000), but with specialty crops, damages can quickly exceed these limits.
- Farmers may think their umbrella coverage will help cover neighboring losses from drift, but most umbrella policies exclude “pollution” as a covered loss and would consider dicamba spray drift to be a “pollution” incident rather than an act of negligence. In those cases, coverage could still exist if the farmer has purchased a “pollution rider” to cover incidents deemed to be pollution.
- Specialty crop growers should expect very little from their own insurance coverage. Drift is typically not considered an “act of God” and is therefore not covered by crop insurance.
Filing a complaint with your state pesticide regulator is no trivial matter. Carefully weigh the pros and cons of reporting.
- Official state investigations provide important information for state regulators. Complaints have been used to recognize the need for additional state restrictions and limits on the use of certain problematic products.
- State investigations do not cost anything to the complainant grower but usually involve a site visit and interview. Check your individual state website for protocol, time limits, information release, and other details.
- Your state chemist or department of agriculture can only issue violations for misuse of a pesticide. Recovering expenses from damaged or unmarketable crops requires additional legal action.
- You are not required to file a complaint and doing so usually initiates a process that you cannot stop once started. Talk to your neighbor first—especially if the damage is light or if it is the first time you have had problems.
- Complaints are appropriate if you have crop damage which you believe was caused by an applicator’s failure to follow label instructions or state pesticide laws. Penalties may include a warning, fines, or loss/suspension of a pesticide applicator license.
- Dicamba complaints have doubled since 2016 in some states, overwhelming their regulatory investigators. State investigations could take a year or longer to complete. You will undoubtedly want to make a claim with insurance companies long before the state makes a final determination of damage. State complaint data is not required by insurance companies to make payments for losses.
- In some states, if the state regulatory agency does not determine the source of the drift or fails to detect herbicide residues, it may impair your ability to gain compensation.
- Because there are no established tolerance levels for dicamba or 2,4-D on most food products, residue documented by the regulator may impair your ability to sell a food crop. In some states, you may be asked to destroy your crop.
- States also vary on their policy to share records from an official complaint inquiry. In some states these become public record. In other states, a court order is required to release records. Know your state laws and keep your own records, such as date of the initial complaint and your own notes from a state investigator visit.
- Find your state regulatory agency here.
Legal action can be a long and costly process but might be the only way to receive compensation for your harm. These tips may be helpful in deciding whether to pursue legal action.
- Consider first talking with an attorney, preferably one who works in agricultural law. Most attorneys will hold an initial consultation to review the situation before helping you decide if litigation could be useful.
- If your case is not very complicated and your damages are not very high, you might be able to utilize a “small claims” process. Many states have small claims courts for minor cases under a certain dollar amount. You can file the case and represent yourself, but you will have to present evidence of your harm and who caused the harm. These cases tend to move more quickly and cost less than cases filed through other courts.
- You will need thorough records of the drift incident along with your costs, time, and any paperwork, reports, or conversations related to the damage.
- Be careful about the timing of a potential settlement. Depending on your crop and the extent of damage, you may want to wait until harvest or even the following growing season to clarify an appropriate damage amount.
This publication is a product of the North Central IPM Center working group on Herbicide-Drift Risk Management, with support from the USDA National Institute of Food and Agriculture through agreement 2018-70006-28884.
Reference to any commercial products or trade names implies no discrimination or endorsement by the North Central IPM Center or any of the contributing authors or their universities. Nor does this document constitute legal advice. Always seek legal advice from a professional who is knowledgeable in current agricultural law in your state.
Cassandra Brown, Horticulture and Crop Science, The Ohio State University
Stephen Meyers, Horticulture & Landscape Architecture, Purdue University
Douglas J. Doohan, Horticulture and Crop Science, The Ohio State University
Mary Ann Rose, Pesticide Safety Education Program, The Ohio State University
The following individuals reviewed part or all of this fact sheet: Bill Johnson, Purdue University; Cathy Herms, Maria Smith, Peggy Kirk Hall, The Ohio State University; Steve Smith, Red-Gold; Regina Wixon, South Dakota Agricultural Laboratories; Pat Farquhar, Sydney Ross, North Carolina Department of Agriculture; Pesticide Enforcement and Compliance Assurance Section staff, New York State Department of Environmental Conservation; Minnesota Department of Agriculture Pesticide and Fertilizer Management Division.
Behrens R, Lueschen WE (1979) Dicamba volatility. Weed Sci. 27:5, 486-493.
Bish M, Bradley K (2017) Survey of Missouri pesticide applicator practices, knowledge, and perceptions. Weed Technol. 31:2:165-177, doi:10.1017/wet.2016.27
California Pesticide Use Enforcement Compendium Vol 5 Investigation Procedures. Chapter 3 Evidence Collection https://www.cdpr.ca.gov/docs/enforce/compend/vol_5/invstprc.htm
Geary ND, Hatterman-Valenti H, Secor GA, Zollinger RK, Robinson AP (2019) Response of ‘Russet Burbank’ seed tubers containing dicamba and glyphosate. Weed Technol 33:1, 9–16. doi: 10.1017/wet.2018.91
Jones GT, Norsworthy JK, Barber T. (2018) Response of soybean offspring to a dicamba drift event the previous year. Weed Technology 33:1, 41-50.