(Beyond Pesticides, February 7, 2017) After years of legal battle, the Colorado Court of Appeals last week affirmed a ruling that Colorado rancher, James Hopper, must serve two days in jail and pay a $7,500 fine for spraying pesticides that drifted unto his neighbor’s farm in violation of a 2012 court order protecting his neighbors. In 2012, organic farmers Rosemary Bilchak and her husband Gordon MacAlpine, were granted a permanent injunction prohibiting pesticide applications within 150 feet of the property line in order to reduce pesticide drift. Last week’s decision bolsters a legal precedent that wafting pesticides can constitute a trespass against which adjacent landowners and people with health sensitivities are protected.
The legal battle began in 2011 when Mr. Hopper obtained his Colorado pesticide applicator’s license and applied the adulticide Fyfanon, which contains the organophosphate insecticide malathion, to kill mosquitoes on his property. However, the pesticide drifted onto Ms. Bilchak and Mr. MacAlpine’s organic vegetable farm. In 2012, a District Court Judge ruled that they have a right not to have their property invaded by other people or things, and prohibited Mr. Hopper from fogging for mosquitoes within 150 feet of his neighbor’s property or allowing the pesticides to drift, considering this to be a form of trespass. Nevertheless, Mr. Hopper ignored the ruling and continued fogging. Court records show he persisted through August 2015. Last year, a state judge sentenced him to jail and imposed a $7,500 fine for violating the court order. After months of appealing the ruling, Mr. Hopper will face his sentence.
“This is very important to us,” Ms. Bilchak said. Mr. MacAlpine, diagnosed with leukemia before moving to Colorado, had been told by his doctor to avoid pesticide exposure and was registered with the Colorado Department of Agriculture as a sensitive resident. “It is important for us personally, for his health condition, and because we also set a precedent that pesticide drift is a trespass,” she said.
Pesticide drift is an inevitable result of pesticide application. Adulticides that are spraying into the air, like the one used by Mr. Hopper, remain suspended in the air and can be carried great distances by the wind. Pesticides can also volatilize from surfaces into the air and be transported. Documented exposure patterns resulting from drift cause particular concerns for children and other sensitive population groups, as adverse health effects such as nausea, dizziness, respiratory problems, headaches, rashes, and mental disorientation may appear even when a pesticide is applied according to label directions. Sensitive sites like schools, playground and organic farms are especially vulnerable to drifting pesticides. Contaminated organic farms can lose their organic certification if pesticide residues on their crops exceed organic standards.
“This case sets a level of protection for Coloradans who care about their private property and for organic farmers who need to keep their property safe from pesticide exposure,” said Boulder-based attorney Randall Weiner, who handled the case. “No one is exempt from the responsibility to comply with court orders. This spraying had gone on for seven years, and an individual was caught red-handed,” Mr. Weiner said. “The underlying decision, which the courts forcefully have affirmed, is that pesticide spraying can constitute a trespass on private property, organic farmers, and people whose health is precarious.”
In 2011, the Minnesota Court of Appeals ruled that pesticides drifting from one farm to another may constitute trespass, and courts in other states have ruled in favor of organic farmers. Pesticide drift is not only a problem for organic growers. Pesticide drift has been suspected in tree deaths throughout the East Coast and Midwest. A 2011 study by the Centers for Disease Control and Prevention’s (CDC) National Institute for Occupational Safety and Health (NIOSH) has found that pesticide drift from chemical-intensive farming has poisoned thousands of farmworkers and rural residents.
For more information on pesticide drift, read Beyond Pesticides’ report, Getting the Drift on Chemical Trespass: Pesticide drift hits homes, schools and other sensitive sites throughout communities. You can see a video of Rosemary Bilchak speaking at Beyond Pesticides’ 2014 National Pesticide Forum here. In addition, please check out Beyond Pesticides’ mosquito management page and extensive work on the most efficacious methods for Public Health Management Strategy for insect-borne diseases. See mosquito management for Zika virus.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Denver Post