Aspects of Herbicide Drift
D. L. Uchtmann (1)
This article (1) examines how Illinois law discourages herbicide drift, and
(2) illustrates how damages from suspected herbicide drift might be pursued under
Illinois law. The Illinois Pesticide Act (Illinois Compiled Statutes, Chapter
415, Act 60) and principles of civil liability discourage herbicide drift. The
Illinois Pesticide Act does so by making the irresponsible use of pesticides unlawful,
and by assessing penalties of up to $10,000 for violations of the Act. The Act
does not, however, provide any direct means through which an injured party can
collect damages. Instead, injured parties must rely on civil liability principles
and the courts to seek recovery for damages caused by suspected drift. The risk
of being liable for pesticide drift encourages proper use and application of pesticides,
and creates an incentive to settle pesticide drift cases out-of-court. However,
there is also the risk that a party will not be able to recover compensation for
suspected drift damage because of insufficient evidence or the inability to reach
an out-or court settlement. An earlier version of this article was published in
the Proceedings of Illinois’ 2000 Specialty Crop Conference.
The Illinois Pesticide Act and Herbicide Drift
What is unlawful under the act and what penalties may be imposed for these
violations? Some highlights of the Act follow.
Unlawful Acts under the Illinois Pesticide Act (Act § 14).Section 14 of the Illinois Pesticide Act lists activities that are unlawful
under the Act. Several provisions are aimed directly at the irresponsible use
of herbicides. Section 14 makes it unlawful to knowingly apply ineffective or
improper pesticides or to apply pesticides in a faulty, careless, or negligent
manner. Section 14 also requires that herbicides be used in a manner consistent
with the label. Additionally, Section 14 makes it unlawful to use a restricted
pesticide without the required license or certification.
Potential Penalties (Act §§ 24 & 24.1).Section
24.1 of the Pesticide Act sets forth the administrative actions and
penalties that may be imposed for violations of the provisions of the act.
These include advisory or warning letters, monetary penalties of $500 to $10,000,
and suspension of an applicator’s license. This section uses a point system to
determine the amount of any monetary penalty. The system increases the monetary
penalties assessed as the amount of total violation points increases. Section
24 of the Pesticide Act sets forth the criminal penalties that may be imposed
for violations of any provisions of the act. While these criminal penalties are
rarely imposed (it’s easier to proceed under the provisions for administrative
penalties described earlier), fines of not less than $5,000 are authorized.
Enforcement Based on Complaints.The Illinois Pesticide Act relies on a complaint-based
system of enforcement to encourage compliance with the Act. Herbicide drift complaints
should be made to the Illinois Department of Agriculture’s Bureau of Environmental
Programs at 1-800-641-3934. These complaints must be made within 30 days of the
application or 30 days after damage first appears. The Bureau typically receives
about 120 complaints per year with approximately 60% being drift-related. The
percentage of complaints related to suspected drift was apparently a little higher
in FY 99, making up approximately 70% of all complaints.
Pesticide Act: Additional Information.The Illinois Department
of Agriculture has placed on the Internet information regarding the Illinois Pesticide
Act and its complaint process. This information can be found at <http://www.agr.state.il.us/pestuses.html>
(visited June 23, 2000). In addition, the Illinois General Assembly has placed
the Illinois Compiled Statutes on the Internet. The complete text of the Illinois
Pesticide Act can be found at <http://www.legis.state.il.us/legislation/ilcs/ch415/ch415act60.htm>
(visited June 23, 2000).
Civil Liability for Herbicide Drift
By imposing civil liability in some herbicide drift cases,
the legal system encourages careful application of herbicides and provides a means
by which a party injured by herbicide drift may recover monetary damages. There
are various legal “theories” which could support imposing civil liability for
damages caused by herbicide drift.
Theories of Liability for Pesticide Drift
is probably the most common legal theory asserted as a basis of recovery in herbicide
drift cases. Under a negligence theory, liability is imposed when there has been
a failure to exercise due care under the circumstances. Examples might include
failing to adhere to the instructions on the herbicide label or hiring a non-certified
applicator to conduct the spraying. Sometimes an injured party may also assert
a theory of “strict liability” as a basis for recovering damages. Both theories
require the injured party to prove that the damage was caused by the defendant,
and each theory requires the proof of other facts as well.
Seeing the Theories in Practice: Kleiss
v. Cassida, 297 Ill. App.3d 165 (1998)
How courts apply the rules of civil
liability to herbicide drift cases can be seen by looking at a real case. The
full text of the appellate court opinion can be found on the Internet at <http://www.state.il.us/court/appellates/1998/4970604.txt>
(visited June 23, 2000), or in a county law library. An abbreviated discussion
of the case, based on the published opinion, follows. The purpose of this abbreviated
discussion is not to evaluate whether the plaintiff should have been able to recover
additional damages, but rather to provide a case study of one plaintiff’s efforts
to recover damages for suspected herbicide drift.
in the Case. A family owned a farm in Douglas County on which 185 acres of
grain crops, fruits, and vegetables were raised. In 1990 the family experienced
crop damage, which they attributed to a dicamba herbicide. The family believed
that the damage was the result of herbicide drift from the herbicides Banvel and
Marksman (both contain a dicamba growth regulator). Banvel had been sprayed by
one defendant on property one mile south of the family’s farm; Marksman had been
sprayed by another defendant on property one-quarter mile southeast. The family
sued both custom applicators alleging negligence in the two separate applications
of herbicide. The family also sued Sandoz, the exclusive producer and distributor
of Marksman and Banvel, based on a theory of strict liability. After hearing testimony,
including conflicting testimony from expert witnesses, the jury awarded the family
damages: a net of $17,500 against the custom spray service which had sprayed within
one-quarter mile (but no damages were awarded against the applicator who had sprayed
about one mile away); the jury also awarded damages of $17,500 against the herbicide
manufacturer, Sandoz. After the trial, the judge overturned the award of damages
against the manufacturer, which had been based on the strict liability theory.
According to the trial judge, the jury had insufficient evidence to conclude that
it was Sandoz’s chemical that caused the damage. The family appealed and the appellate
court affirmed the rulings of the trial judge.
Note About Court Procedure in this case. It is generally plaintiff’s responsibility
to prove the “elements” of the civil case by a “preponderance of the evidence.”
Usually questions of fact are decided by a jury. But where a trial judge believes
the jury’s findings are not adequately supported by the evidence, the trial judge
has the responsibility to overturn the jury’s findings in the interests of justice.
Such a decision by the trial judge can be appealed to a higher court. In this
particular case, the rulings of the trial judge were affirmed on appeal. But separate
and apart from the procedural aspects, the case highlights additional important
aspects of civil liability as it relates to herbicide drift. These are described
of Pesticide Drift Complaint and Department of Agriculture Investigation.
In this case, the Illinois Department of Agriculture received a complaint, and
conducted an investigation under the Illinois Pesticide Act, but was unable to
determine with certainty the cause or source of the injury. If the Department
had found a violation and collected an administrative penalty, that penalty would
not go to the injured party but the fact that a violation had occurred might have
assisted the plaintiff in carrying his burden of proof in court. If the Department
of Agriculture had found a clear violation by both applicators, the civil case
might have turned out differently.
Plaintiff’s Burden of Proof. To collect damages, the plaintiff must
initiate the lawsuit; no agency will initiate the action for the plaintiff. Additionally,
the plaintiff must prove each required element of the civil action. Regardless
of the legal theories of recovery used, the plaintiff must prove each element
by a “preponderance of the evidence.” This can be difficult in herbicide drift
Difficulties in Proof. It can be very difficult to establish what particular
chemical caused the damages. Even if this can be proven, it may be difficult to
show that it was the defendant’s spraying (as opposed to spraying by someone else,
for example) that was the source of the drift. Even if causation is established,
the plaintiff still must prove either that the defendant was negligent in the
application (defendant may then be liable under the “negligence” theory) or that
the product was unreasonably dangerous (defendant manufacturer, etc. may then
be liable under a “strict liability” theory). Many of the underlying issues will
call for expert testimony and the potential for conflicting expert opinions.
Weighing Conflicting Expert Testimony.
One issue raised at trial was whether the herbicides
could possibly drift all the way from either site of defendants’ allegedly negligent
sprayings (one-quarter mile away, and one mile away) to the damage site, or whether
it was more likely that drift originated elsewhere. Conflicting expert testimony
focused on the distances that herbicides could possibly drift. The trial court
gave little weight to the testimony of the plaintiff’s expert witness, apparently
because that testimony was based on nothing other than the expert’s experience.
In contrast, the defense’s expert witness based his testimony on literature reviews,
the findings of a Spray Drift Task Force, and his own research. This testimony
was given much more weight than that of the plaintiff’s expert. The case illustrates
that experts may have differing opinions, and that the stronger the analytical
basis for the expert’s opinion, the more weight it likely will be given. If there
is no analytical basis for the expert’s opinion, it may not be very persuasive
to the court.
Potentially Lengthy Judicial Processes. The alleged
damage occurred in 1990, the trial occurred later, and the appellate court’s decision
affirming the trial court was rendered in June of 1998, eight years after the
alleged harmful spraying. The judicial process can be lengthy.
Illinois Pesticide Act and rules of civil liability are key tools in regulating
herbicide drift. While the Illinois Pesticide Act may be effective in discouraging
drift, it offers no mechanism through which one damaged by herbicide drift may
recover monetary compensation directly. The rules of civil liability, including
the legal theories of negligence and strict liability, do provide a court-based
mechanism for recovering compensation for herbicide drift damages. But recovery
through the courts can be a long and difficult process for the plaintiff, and
of course, there is always the risk of non-recovery. The 1998 case illustrates
many of the difficulties a plaintiff may face when attempting to recover for herbicide
drift. Nevertheless, the potential for successful recovery by an injured party
does exist. And this risk of being liable for pesticide drift damage serves to
encourage careful pesticide application, creates an incentive to explore out-of-court
settlements where drift damage appears to have occurred, and may result in the
successful recovery of damages – either through an out-of-court settlement or
a judgment following a civil trial.
Note: This article is not intended to represent legal advice
to anyone injured by pesticide drift. If you have been injured by pesticide drift
and need legal advise, you should contact an attorney.
1. Uchtmann is a Professor of Agricultural Law in the Department
of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign.
B.S. 1968, University of Illinois; M.A. The University of Leeds, England, 1972;
J.D. 1974, Cleveland State University. He is a former President of the American
Agricultural Law Association.