After Experiencing Drift Damage, What Should You Do?

Paul Goeringer, Extension Legal Specialist, Department of Agricultural and Resource Econ.

This is not legal advice. 

Damage caused by pesticide drift has been in the news a lot over the past couple of years.  With Monsanto releasing new varieties resistant to a new less volatile formula of dicamba, reports of drift damage have increased in many states.  At the winter agronomy meetings, I discussed what type of liability an applicator might face if a neighbor complained of drift damage.

But what should you do if you suspect drift damage in your fields?  An injured producer should contact the state department of agriculture to investigate, begin developing evidence of the damage, consider working with the applicator/neighbor to settle the damage, or consider hiring an attorney to pursue a lawsuit in court.  Understanding how to handle drift damage can help the injured producer understand his/her rights in this situation.

The Maryland Department of Agriculture (MDA) governs pesticide applications in the state.  You should immediately report the drift damage to MDA to begin an investigating the potential violation.  The state will investigate the potential drift incident; interview the applicator, witnesses, and other parties; collect samples; review records; and collect other evidence.  If the state finds a violation has occurred, then the state can impose fines against the applicator.  These fines will not, however, be the same damages paid to an injured producer for crop damage but will go directly to the state.  It is important to note this process can take time and can be frustrating to the injured producer.

What else can you do besides contacting the appropriate state agency?  Begin to document the damage.  Take photos, which demonstrate the damage and take samples of damaged crops and other plant life.  If you know the date the application took place, document the weather conditions on that date, including temperature, wind speed, and wind direction.  Ask neighboring landowners if they witnessed any recent applications in the area.  The more documentation you have will help you down the road.

Once you have an idea who caused the drift, you may want to try dealing with the issue outside of court, which may help you preserve relationships with neighbors.  One way to do this is stopping by to talk with the neighbor about the drift damage.  Another option for those in Maryland would be to contact the MDA’s Agricultural Conflict Resolution Service (ACReS) program, a USDA-certified agricultural mediation program.  Mediation is an alternative process to settling disputes outside of court, potentially saving money in legal expenses,  settling disputes efficiently, and preserving relationships with neighbors.

You can also consider contacting an attorney to file a civil lawsuit in court.  Any damages awarded in court would go to compensate you for the drift damage.  The documentation developed early on would be useful when going to court.  If you take this option, you should discuss options with an attorney, as the state’s investigation of a violation going to court can be a long process.

When faced with potential drift damage, you should contact the respective state department of agriculture to report the damage, begin developing documentation to show the damage, consider working outside of court with the applicator, and consider contacting an attorney to file a civil lawsuit.