Organic Farmers Win One in Pesticide Case

DELTA, Colo. (CN) - Agricultural pesticides can be a form of trespass if they affect neighbors, a state judge ruled, in a decision that could have statewide implications for organic farms and their neighbors.

For more environmental news, click here to check out Courthouse News' Environmental Law Review.

Delta County District Court Judge Charles Greenacre found that farmer James Hopper sprayed Fyfanon, a pesticide, onto the property of his neighbors, Gordon Macalpine and Rosemary Bilchak, "without regard for their health or property rights."

Macalpine and Bilchak are trying to certify their farm as organic, meaning pesticides cannot be found on their property.

Greenacre ruled on July 5 that Hopper twice trespassed by spraying the chemical onto his neighbors' land in 2010.

"Because of his inexperience with wind speed and direction, Fyfanon drifted onto plaintiffs' property adjacent to their home," Greenacre wrote in his Findings of Fact, Conclusions of Law and Permanent Injunction.

Hopper used a road so close to Macalpine and Bilchak's property that he knew pesticides were reaching his neighbors, Greenacre wrote: "Mr. Hopper, while driving on a road on his property, intentionally sprayed Fyfanon on plaintiffs' property to the south of the Hopper property. Plaintiffs, who were home at the time, saw the Fyfanon drift onto their property."

The injunction against Hopper and his wife prohibits them from spraying Fyfanon within 150 feet of the Macalpine and Bilchak property and from spraying if wind will blow the chemical across the property line. With some exceptions, Hopper had already adopted a similar policy for himself.

To Randall Weiner, the Boulder lawyer who represented Macalpine and Bilchak, the decision is a landmark in Colorado.

"There is no reported decision finding a pesticide to be a trespass," Weiner told Courthouse News in an interview Tuesday. "And certainly no decision that I am aware of that enjoins such activity, and enjoins such activity on the property of the polluter.

"Trespass has evolved from the original days when stepping onto somebody's property was trespass, and now environmental contaminants can be a trespass," Weiner said. "This is the first case I know of where pesticide drift is a trespass. So this is evolution in trespass law."

Weiner, an environmental and personal injury lawyer, said the ruling was important to protect Colorado's the "burgeoning organic growing industry."

"We have gotten a call already from an aerial sprayer," he said, "and they wanted to know if they could spray from an airplane. My response is no. Aerial application is going to result in contamination."

The ruling could have an impact beyond sparsely populated Delta County, southeast of Grand Junction, in west-central Colorado, Weiner said.

"Right now it's only advisory around the rest of the state," he said of the ruling. "But even if it's only advisory, courts in Colorado are likely to take a close look at it ... because there are no other cases out there and they're going to be looking for other precedent."

Weiner said an appeal seemed unlikely.

"I think both sides are declaring victory, believe it or not," he said. He said that Hopper has received training in his spraying equipment and is enforcing, for the most part, the 150-foot border.

Weiner said the ruling probably will push farmers to update how they control mosquitoes. Fyfanon is used to kill adult mosquitoes, but "larvaciding," or killing larvae, is "a much safer, more scientific way" to kill "millions more mosquitoes," without as many spraying issues, Weiner said.

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