An Injunction Without Merit in Pesticide Trespass Case

July 16, 2012 | Erika Eckley

Recently, a Colorado district court judge issued a permanent injunction establishing a setback limit for spraying pesticide on an individual’s property to prevent potential pesticide drift onto a neighbor’s land. Originally, the neighbors filed a complaint with the Colorado Department of Agriculture (CDA) regarding the defendants’ improper use of pesticide. The CDA issued a “cease and desist” order until the defendants were in compliance with state law. Afterward, a temporary restraining order was granted when the civil suit was filed. Following a lengthy hearing, the plaintiffs were denied a preliminary injunction after the defendants established that they had become certified for use of Fyfanon [a pesticide containing malathion used to kill adult mosquitos] and the fogger had been calibrated as required by the CDA. The defendants also established that the spraying was necessary due to the presence of West Nile Virus in the county and the lack of spraying as a policy decision by the local mosquito district. One of the defendants had contracted the virus years before and spent more than two weeks in the hospital and still suffered from the effects of having contracted encephalitis. The defendants also took care of their granddaughter who had several mental health and development disorders that required her to keep a regular routine, which included spending time outside on the trampoline at dusk, which is the prime time for mosquito activities.

Eventually, a motion for summary judgment was granted in favor of the plaintiffs finding that the defendants’ application of Fyfanon that drifted onto the plaintiffs’ property was a legal trespass. The court found no question of fact that there was an intention by the defendants to spray the area and testing established that particulate pesticide matter was found on the plaintiffs’ property.  After the judge’s ruling, the plaintiffs dropped their claims for damages and sought only a permanent injunction limiting the defendants’ use of pesticide. Ultimately, the court did grant the injunction.

In granting the permanent injunction, the court laid out certain facts of importance. Even though the defendants had complied with all of the CDA certification and calibration requirements for using the London Fogger and pesticide, the court determined an injunction should be granted anyway. The court concluded that the injunction was necessary because the plaintiffs were incredibly sensitive to pesticides due to the husband’s leukemia diagnosis, had changed their diet and behavior to grow their food organically, and testified they were taking steps to have their farm organically certified.

A question can be raised as to whether the issuance of the injunction was actually necessary.  For instance, the complained-of pesticide spraying occurred only once in July of 2010. The plaintiffs filed a complaint with the CDA. CDA tests indicated that the pesticide was in-fact present on the property and on the windowsill of the plaintiffs’ home. The defendants were ordered to cease and desist spraying until they met certain requirements. The defendants complied with all regulatory requirements. The husband became licensed to spray the pesticide. The fogger was calibrated. Written notice was sent to the plaintiffs before each spraying (after the injunction was lifted). A wind sock and a flag were installed on the defendants’ truck to gauge wind direction and speed.  Another person rode in the truck when fogging to keep track of the direction the fog was moving and whether efforts should be discontinued due to the wind. The defendant did not fog within 150 feet of plaintiffs’ property except at the property line which was only 115 feet from the plaintiffs’ property. By the time the court entered its permanent injunction, the issue had been resolved. The administrative agency charged with enforcing the use of pesticides in the state had done its job.

The court’s permanent injunction requires the defendants to continue the same practices already implemented except that the defendants cannot spray closer than 150 feet from the plaintiffs’ property. No additional trespasses occurred between the time the preliminary injunction was denied and the permanent injunction was entered even though the defendants had sprayed. There was no further problem to resolve.

If additional problems occur, the CDA is the agency charged with enforcing compliance with state law on pesticide use and resolving any violations of state law. The only change required of the defendants in the injunction is to refrain from spraying in the front yard where there is not a 150 year distance between their yard and the plaintiffs’ property. But, the injunction does not even require the defendants to send the plaintiffs notice before spraying and does not limit the number of times the defendants can spray. The court did not add much to a situation that had already been handled by the CDA, and this may set a dangerous precedent.

A simple search on the Internet reveals a number of anti-pesticide organizations. Some of these organizations are holding training sessions to provide equipment and teach rural residents and small organic growers how to monitor and test for any pesticide levels on their property. As more individuals regularly monitor for trespass about which there may have been no previous knowledge or effects, courts are likely to see more of these types of cases being brought even in the absence of compensable damages or injury.

If these cases continue to be litigated, it will be interesting to see how the organic standards and testing will also be affected.  USDA standards require that organic produce may not have a detectable residue level of prohibited substances, including pesticides, greater than five percent upon testing. If a farmer believes his crop has come into contact with a prohibited substance, notice must be given to the state certifying agent to test the product before it can be sold as organic. This may create an issue for organic growers. If they are actively testing the environment for any presence of pesticide, they will be required to have the produce tested when any residue is discovered. Organic products can be sold for significantly higher prices than conventional products, so there is significant incentive to meet certified organic requirements. This could create compensable damages for the difference between selling the product as organic versus conventional. But, this also raises the issue of who should be responsible to prevent any residue or draft.

Organic growers are also supposed to have buffer zones and have a written plan to ensure the organic nature of the product being sold. There is going to be continued conflict between organic growers and property owners that are licensed to use conventional herbicides and pesticides. Issues arising from potential for pollen drift between GM products and identity-preserved and organic products may also begin to create legal questions about what constitutes a trespass or nuisance and who should bear responsibility. If courts continue immerse themselves in squabbles between neighbors over legal issues that can be resolved by agencies charged with enforcing the rules and regulations about which the controversy exists, the possibility for co-existence between farmers and neighbors with different viewpoints will likely diminish. Macalpine v. Hopper, No. 10CV220 (Delta County Dist. Ct. Jul. 5, 2012).