By: Judit Monis, Ph.D. and Brian D. Kaider, Esq.
Last July, Judit was invited to speak to a group of growers in Pennsylvania. The presentation focused primarily on grapevine diseases caused by bacteria, fungi, and viruses but at the group’s request pesticide drift was also covered. Extension specialist colleagues: Mike White (recently retired from Iowa State University), Tim Martinson (Cornell University), and Bruce Bordelon (Purdue University) helped by providing photos of herbicide injury in vineyards. However, according to the audience and what was seen the next day at the vineyards, other more drastic symptoms are observed in their vineyards, such as complete wilting of leaves in the vine and rapid defoliation (see photos taken by Judit).
The Problem
So many times, throughout our careers, plant pathologists are called to check out vineyards that have “interesting” symptoms that do not necessarily fit with the symptoms caused by the “usual suspects”. It seems like more often than not, vineyards are affected by chemical products that were not intended to be applied to the vines. The effects of these unwanted chemicals can cause long term and often times irreversible damage to grapevine (and other crop) plants. This article will have a different focus and will cover pesticide drift, specifically the injury caused by herbicides in vineyards.
Pesticide Drift
Pesticide drift is defined as the movement of a pesticide to unintended areas from the site of application. Pesticide drift can be harmful to humans, animals, and plants. Obviously, when a product is applied during a time of heavy winds, it is expected that the product will be transported to another field in the direction of prevailing winds. However, many herbicides (especially the ester formulations of 2-4-D) are able to volatilize, forming clouds that may be transported and ultimately land miles away from the application site causing tremendous damage to the vineyard plants.
Herbicides are chemical products that are used to control weeds in agriculture lands, lawns (e.g., golf courses or homes), highways, etc. The herbicides most commonly used are plant growth regulators (PGRs). While PGRs are used to kill weeds with broad leaves, these chemicals have detrimental effects on important commercial crops. The most common situation is when herbicides applied in neighboring farms that grow row crops such as corn, sorghum, or soybeans, are transported to a vineyard. The effect in the vineyard can go from distorted leaves, shortened internodes, complete defoliation, to vine death. Depending on the time in which the injury occurs it can have severe effects on the quality of the grape fruit to complete loss of production. The the effect of herbicides in the grape clusters can be seen in Fig 1. Initially the herbicide damage may be observed in one or two of the berries in a cluster. But later, the damaged fruit becomes susceptible to infection by secondary saprophytic organisms that ultimately deteriorate the whole cluster.
The damage caused by PGRs can be long lasting and in some cases the only solution is to replace the affected vines with new plants. Unfortunately, vineyards may suffer more than one drift incident during its lifespan resulting in an uneven vineyard consisting of vines of different ages and sizes. The diverse size of vines creates a challenge to the grower as each plant must be managed differently due to their nutrition and water requirements, not to mention that younger vines are more susceptible to herbicide injury.
When damage caused by an herbicide is noticed in the vineyard, growers must act quickly to determine the injury’s cause. In all instances, damage must be documented with photos. In addition, physical samples must be submitted to a lab to determine which pesticide is the culprit of the injury. Since there are many different possible chemicals that can cause similar symptoms, the grower needs to have some knowledge as to what chemical is suspected as the laboratory needs to perform specific tests to confirm the presence. A common problem is that chemicals can move a long distance, hence not always easy to determine where the drift originated. However, if the grower, knows the origin of the herbicide (saw spraying activity in a nearby farm), s/he could attempt to ask the farmer to follow label directions to avoid drift or to use a less volatile product. If the activity continues in spite of the request, the only viable solution may be to take legal action against the perpetrators.
Although the U.S. Environmental Protection Agency (EPA) requires all pesticides to be registered, through the Federal Insecticide, Fungicide, and Rodenticide Act (FINRA), regulation of pesticide application is generally the responsibility of each individual state’s department of agriculture or environmental agency. Naturally, each state’s approach has been tailored to the unique requirements and circumstances of its jurisdiction, resulting in a broad spectrum of regulatory frameworks. Accordingly, the strategy for taking legal action in the event of pesticide drift will depend greatly upon the state in which the damage occurred. However, the following are some of the most common legal theories under which these cases may be brought.
Negligence
A legal claim for negligence occurs when four conditions are satisfied. Someone owes a duty of care, that person breaches their duty of care, another person or their property is damaged, and the breach of duty is the cause of that damage. It is generally accepted that someone applying pesticides owes a duty of care in their application methods. Further, demonstrating that a neighboring crop or property was damaged is fairly easy. The difficulty in these claims is proving that the applicator breached the duty of care and that the breach was the “proximate” cause of the damage.
Whether there is a breach of duty depends, in part, on the extent of the drift. Nearly all pesticide applications involve some amount of drift. The applicator is only negligent if the pesticide is used under conditions or in a way that exceeds normal drift.
There are many ways in which a pesticide applicator may breach their duty of care. Commercial pesticides, such as 2,4-D, come with instructions specifically designed to minimize the risk of drift. For example, 2,4-D instructions say not to apply the chemical when the wind is stronger than 15 miles per hour. There are also instructions relating to concentration, droplet size, temperature, and suitable equipment. Further, state and local jurisdictions often have regulatory requirements involving crop buffer zones or setbacks. Failure to abide by these instructions and regulations would likely be considered a breach of the duty of care.
Other actions may not be as clear. For example, in an aerial application of pesticide, the higher the altitude at the time of chemical release, the greater the risk of drift. How high is too high in a given case will depend on many factors, including; the type of chemical, the form of the chemical, the equipment used, the wind speed, the topography of the land, etc.
To prevail on a negligence claim, you must prove not only the breach of duty, but that the breach caused the injuries to your land. This may be especially difficult if there are multiple land-owners surrounding your property and each of them uses the same or similar pesticides. How do you know which one caused your damage? Some successful claims have included testimonial evidence that aerial application was made across property lines and that visual pesticide residue or odors were detected on the damaged property after observing application on the neighboring property.
Res Ipsa Loquitor
There are some circumstances in which the damage itself is sufficient evidence of negligence. In these cases, there is a legal doctrine known as res ipsa loquitor (Latin for “the thing speaks for itself”) that applies. Essentially, the argument is that some events do not ordinarily happen in the absence of negligence. So, for example, if a crop duster suddenly drops its entire load of pesticide on a property 10 miles away from the intended target, that is sufficient proof that the pilot was negligent in operating and/or maintaining the equipment.
Strict Liability
Some products or activities are so inherently dangerous that even when exercising great care, injury is likely to occur. The classic example is owning a tiger. It doesn’t matter how strong a cage you use to hold the tiger, how much training you have in working with tigers, or what precautions you use to ensure your is restrained. If your tiger escapes and bites someone, you will be liable, because tigers are inherently dangerous.
Many states have specifically found that pesticide application is NOT inherently dangerous, meaning that strict liability does not apply. There is one 1961 case, however, where a court disagreed. In Young v. Darter, the Oklahoma Supreme Court held that application of 2,4-D was inherently dangerous and found the applicator strictly liable for damage to his neighbor’s cotton crop. It is worth noting that both cotton and grape vines are highly susceptible to damage from 2,4-D.
Trespass
Most people understand that if a person enters their land without permission, they are guilty of trespassing. Some jurisdictions, however, have also held that releases of chemical substances that settle on the property of another can constitute a trespass. For example, in 1959, the Oregon Supreme Court held in Martin v. Reynolds Metals, Co. that the defendant’s release of fluoride gas that settled on adjacent land, rendering it unfit for cattle grazing, was an actionable trespass. Unlike a negligence claim, actual damage to the subject property is not a required element in a trespass claim, though lack of injury may dramatically restrict the amount of any monetary recovery.
Nuisance
Whereas trespass law addresses physical intrusion of pesticide particles onto the property of another, nuisance law addresses the interference with the use and enjoyment of the land that results from such an intrusion. So, for example, if a pesticide drifts onto vineyard property in detectable amounts, it may constitute a trespass, whether there was damage or not. But, if the grapevines on the property were damaged, it would interfere with the owner’s use and enjoyment of the land, giving rise to a nuisance claim. It is worth noting that at least one jurisdiction, Minnesota, has held that pesticide drift can ONLY constitute a nuisance and not a trespass, because the particles are not a “tangible” object that affects the owner’s exclusive possession of the land.
Additional Issues
Two other points are worth mentioning. First, before bringing suit in a pesticide drift case, it is important to know who applied the pesticide. If the owner of the neighboring property or one of his employees did it, then he is liable. But, if it was applied by an independent contractor hired by the neighbor, it may only be the contractor who is liable. In some cases, where the neighbor specifically directed the contractor to use certain chemicals, or to spray them in a particular manner, both the neighbor and the contractor may be liable. Second, there have been cases in which pesticide drift has caused the damaged property to lose certification as an “organic” farm. Some states, such as Maryland, have databases of sensitive crops. Owners should be sure to list their organic fields in these databases to alert neighboring farms to exercise caution in pesticide application.
Judit Monis, Ph.D. is a California-based plant health consultant, provides specialized services to help growers, vineyard managers, and nursery personnel avoid the propagation and transmission of disease caused by bacteria, fungi, and viruses in their vineyard blocks. Judit is fluent in Spanish and is available to consult in other important wine grape growing regions of the word. Please visit juditmonis.com for information or contact juditmonis@yahoo.com to request a consulting session at your vineyard.
Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation. bkaider@kaiderlaw.com, (240) 308-8032
