Tree Damage From Crop Spraying

[TNTreeHugger]

I'd agree with that. I know dept of AG wants it resolved. The applicator's license maybe on the line if it isn't. If dept of agriculture determines they are at fault, they should realize they are "on the hook" for damages.

Where attorneys may need to get involved is if they disagree with that or value of damages cannot be agreed upon. Might also be worth a call you your home owners insurance. They may be willing to "fight" the farmer's insurance for you???

Frankly if they are liable it will probably be an insurance claim, so don't fight with your neighbor. Take it as a "stuff happens" situation. Make it clear you don't want it to happen ever again and realize his insurance is on the hook so don't be mad at him if they resist paying. Not saying it is OK or that it doesn't suck...it does. But it is outta their hands at this point. Just drive home "never again, please".

I thought about calling my insurance agent. I'll add him to the list of who to call after the inspection in done.

I can't help but have a queasy feeling about the whole thing... it's a rural community, lots of farmland, and this involves my neighbor and a close relative as property owners. I used to care for the mother of the farmer working the crops. My insurance company is Farm Bureau.
Can't help but feel I am standing alone on this issue, up against a community of farmers and assorted gov't agencies who generally support them. I sure don't want to have to make this a legal battle.

Realistically and hypothetically speaking, from looking at the photos I posted, what are the odds they will recover, or will there be permanent damage to these trees?
Are any of them more likely to die than others? Would it have to do with stage of leaf growth at time of spraying, or maturity of the tree?
Looks to me like the redbud, grapevine and oak are toast.

I'm really hoping this is just a temporary setback for them and not a lethal dose.

 

[Bill G]

Same results...just a matter of delivery. Drift may be worse because the plants would have received a more direct hit. But there is plenty of documentation of significant damage caused by volitilization.

The damage may appear the same but if the OP pursues this based on damaged caused by volatilization (known as vapor drift) and the person who applied the herbicide can prove they were spraying glyphosate (Roundup) without a Dicamba tank mix his/her argument will fail. If there is pursuit of a claim it will go nowhere in that situation.

 

[TNTreeHugger]

Without the weather records, we aren't likely to ever know. There is always the consideration that the farmer probably didn't spray all 320 acres in just one day or one trip. That's a very big field!

Now that I think about it... That farmer probably hired the local Coop or a contract spraying firm to spray his fields, just on account of how much better and more specialized they are likely to be.

You are wrong on all counts.
We have weather records - also documented daily temps and activity posted here to the forum.
Also, I said he was out there for two long days
The same farmers have been working these fields for generations... not the co-op

 

[TNTreeHugger]

The damage may appear the same but if the OP pursues this based on damaged caused by volatilization (known as vapor drift) and the person who applied the herbicide can prove they were spraying glyphosate (Roundup) without a Dicamba tank mix his/her argument will fail. If there is pursuit of a claim it will go nowhere in that situation.

The inspector would be able to confirm what was used, right?

 

[TNTreeHugger]

Is this not clear evidence of a chemical spray with surfactant?

 

[TNTreeHugger]

146 damaged trees including the nandina, althea, azalea, and burning bush - not counting smaller trees in the fencerow.

 

[Bill G]

You are wrong on all counts.
We have weather records - also documented daily temps and activity posted here to the forum.
Also, I said he was out there for two long days
The same farmers have been working these fields for generations... not the co-op

I fully understand what pdqdl was saying and I believe you may have have missed his point. I have also wondered all along if this was a private or commercial issue. Lets start with some basics.
How big of field was it? (roughly in acres)
You say they were out there for two long days. Are you saying they were spraying the entire time for two long days or just that they were working in the field for two long days.
Was this a sprayer pulled by a tractor or a self propelled machine?
Roughly how big were the booms 30, 45, 60, 90, 120 ft

You say the same farmers have worked these fields for generations...not the CO-OP. Well that has exactly zero to do with it. We been working the same land for 150 years and have not self applied a pre-emergence or first growth stage herbicide ourselves in probably 30 years. It is way too time consuming when your time is better spent planting or mowing hay when the local CO-OP can do it in 10% of the time and have INSURANCE for mistakes.

 

[TNTreeHugger]

I fully understand what pdqdl was saying and I believe you may have have missed his point. I have also wondered all along if this was a private or commercial issue. Lets start with some basics.
How big of field was it? (roughly in acres)
You say they were out there for two long days. Are you saying they were spraying the entire time for two long days or just that they were working in the field for two long days.
Was this a sprayer pulled by a tractor or a self propelled machine?
Roughly how big were the booms 30, 45, 60, 90, 120 ft

You say the same farmers have worked these fields for generations...not the CO-OP. Well that has exactly zero to do with it. We been working the same land for 150 years and have not self applied a pre-emergence or first growth stage herbicide ourselves in probably 30 years. It is way too time consuming when your time is better spent planting or mowing hay when the local CO-OP can do it in 10% of the time and have INSURANCE for mistakes.

How big a field?
312 acres adjoining my property on two sides.
The "tractor" was running two days straight. No other work done in the fields.
Can't be positive on the equipment used... I didn't know I'd be quizzed on knowledge of it later.
It could have been this or the other one, I have seen both types in the field.
Maybe they are the same thing? Heck if I know.





Pulled by a tractor, or self propelled? Couldn't say.
Booms? Couldn't say.
But, the equipment is stored in barns just a few miles from my house, so there's no problem finding out.

Oh, I think I see what you mean about the co-op... could be.
What I don't think I explained clearly is that the property owners live in another county/state and have no "hands-on" involvement with working the land. They lease it out to local farmers who work it for them, under contract, I suppose.

 

[TNTreeHugger]

Just got off the phone with my cuz who's out of town at the moment. He said he had noticed the leaves on his oaks cupping, but it hadn't occurred to him it might be the chemicals.
He said he recalls one farmer killing another several years ago in west TN over the dicamba.
Also said it's been a problem ever since they came out with it.
He agreed with calling the DoA inspector and asked me to go take a look at his trees to see if there are similarities.

 

[ATH]

....Oh, I think I see what you mean about the co-op... could be.
What I don't think I explained clearly is that the property owners live in another county/state and have no "hands-on" involvement with working the land. They lease it out to local farmers who work it for them, under contract, I suppose.

A) Doesn't matter who owns it, the applicator is responsible for proper application. You are probably "better" off if it was the co-op. That way you aren't picking a fight with a neighbor. They'll just let insurance handle it and be done with the matter. Not that they don't care...but they just have to re-train some folks and keep going.

B) It is probably good to let the owners know if you know them. I've worked with a client who suffered damage from herbicide overspray 2 years in a row. The owner switched farmers because they didn't like their neighbor's stuff being damaged.

C) Will it recover? depends on what was used and the dose.

D) Don't feel alone. Insurance, Dept. of Ag, etc... all want to see chemicals applied correctly. More stuff like this that happens, the harder it will be for them to operate in the future.

 

[arathol]

Can't help but feel I am standing alone on this issue, up against a community of farmers and assorted gov't agencies who generally support them. I sure don't want to have to make this a legal battle.

Alone? Nope....In the OP you wrote this -

A few weeks later I noticed the leaves on some of my trees shriveling up.
I talked to someone who knows who farms that land and he told me there have been several law suits about that kind of tree damage.

Look into these lawsuits, who is bringing them, who the defendants are, who is representing the plaintiffs etc. Strength in numbers etc.....Alone you might not make any headway, but if all the plaintiffs get together in front of a judge you might have a much better chance of receiving a favorable outcome.
You need to name everybody involved in any lawsuit as a defendant - the applicator, the people who run the farm, the owners of the farm, anybody else involved with the spraying.
If necessary go outside of the realm of farm and pesticide regulations. Proving misuse of the toxins will be hard to do if you stay within that regulation and enforcement process. However, if you document everything chances are you can prove negligence. Despite what some self professed experts say it doesn't matter what they were spraying, how they sprayed, if the toxins were sprayed according to manufacturers directions, or anything else. Keep the product names out of the process other than to show that a herbicide used by the farm in question was responsible for the damage. What you need to prove is that the farmers applied a herbicide during adverse weather conditions in a manner that would guarantee surrounding properties would be effected.

 

[Bill G]

312 acres adjoining my property on two sides.
The "tractor" was running two days straight. No other work done in the fields.

If it took two days to only spray 312 acres that is a small boom sparyer and a slow tractor. Using the smallest boom of 30 feet, running SLOW at 5mph, and a EFC of 85% it would take 20.19 hours to spray that amount. Now using a standard 60 ft boom more than cuts that in half as your EFC will go up. It really does not matter though as all I was trying to do is figure out if you were 100% certain it was a private applicator which your details do indicate.

Can't be positive on the equipment used... I didn't know I'd be quizzed on knowledge of it later.

What I don't think I explained clearly is that the property owners live in another county/state and have no "hands-on" involvement with working the land. They lease it out to local farmers who work it for them, under contract, I suppose.

As for the property owners living out of state that is irrelevant as they have ZERO liability unless they had a crop share and even then it has little to no chance of a liability issue. The land was cash rented out.

As for......... I didn't know I'd be quizzed on knowledge of it later. ................ Well if you pursue the issue get ready for a heck up a lot more "quizzing"

 

[farmer steve]

The inspector would be able to confirm what was used, right?

They will probably take leaf samples and do an analysis as to what was used. Unless the farmer will tell them what he sprayed.

 

[TNTreeHugger]

TY everyone.
Going to take a little ride around the neighborhood to see what I can see.

 

[arathol]

As for the property owners living out of state that is irrelevant as they have ZERO liability unless they had a crop share and even then it has little to no chance of a liability issue. The land was cash rented out.

Living out of state has zero effect on who is liable. You own the property, you own the liability for what happens there, you are responsible to ensure whoever is running the place is doing so responsibly. Ignorance is no excuse. Absentee landlords can absolutely be held responsible for the farmers actions. As said before, everybody involved with the farm and the spraying should be considered a defendant in any legal action until the lawyers and the courts say otherwise.

 

[ATH]

Alone? Nope....In the OP you wrote this -

Look into these lawsuits, who is bringing them, who the defendants are, who is representing the plaintiffs etc. Strength in numbers etc.....Alone you might not make any headway, but if all the plaintiffs get together in front of a judge you might have a much better chance of receiving a favorable outcome.
You need to name everybody involved in any lawsuit as a defendant - the applicator, the people who run the farm, the owners of the farm, anybody else involved with the spraying.
If necessary go outside of the realm of farm and pesticide regulations. Proving misuse of the toxins will be hard to do if you stay within that regulation and enforcement process. However, if you document everything chances are you can prove negligence. Despite what some self professed experts say it doesn't matter what they were spraying, how they sprayed, if the toxins were sprayed according to manufacturers directions, or anything else. Keep the product names out of the process other than to show that a herbicide used by the farm in question was responsible for the damage. What you need to prove is that the farmers applied a herbicide during adverse weather conditions in a manner that would guarantee surrounding properties would be effected.

There are multiple possibilities of liable parties, but I'll zero in on 2 just for simplicity.

1) The applicator DID apply to manufacturer recommendations. Off site damage, means the manufacture is more likely to be liable and the applicator probably is not. See Imprelis for the prime example. This is also the question with many of the Dicamba herbicides. It'd be easier to find a lawyer to take that on because it could go class action and they'll get tens (or hundreds) of millions out of it. But you are also fighting against VERY well funded defense team.

2) The applicator applied outside of manufacturer recommendations. The applicator is probably on the hook. Probably easier to get the dept of Ag to agree with that. Probably easier to end up with a favorable outcome. Also probably harder to find a lawyer to spend much time on it because they are suing small potatoes...and will be going against an insurance company.

Yes, there are a thousand other variables...but just food for thought before you go suing everybody and their mother. Ideally, they inspector affirms the problem, the owner admits he was wrong and all your trees live....or the insurance company pays the value of those that do not. (that can be a difficult number sometimes...)

 

[ATH]

Living out of state has zero effect on who is liable. You own the property, you own the liability for what happens there, you are responsible to ensure whoever is running the place is doing so responsibly. Ignorance is no excuse. Absentee landlords can absolutely be held responsible for the farmers actions. As said before, everybody involved with the farm and the spraying should be considered a defendant in any legal action until the lawyers and the courts say otherwise.

Only if they have a REALLY bad land rent contract.

 

[TNTreeHugger]

Bingo. We have a winner. Maybe
Parked in the field across the road from my cuz's house were two vehicles, one a tractor with what looked like a planter behind it and a semi-truck hooked to a flatbed with an assortment of chemicals on it - uncovered, out in the sun, unlocked.
I saw four chemical containers, Diablo, Lock Down, and two others I forgot the name of by the time I got home.
https://nufarm.com/uscrop/product/lock-down-sc/ (for use in NON CROP areas)
https://nufarm.com/uscrop/product/diablo/ (also NON CROP use)

I'll see if I can zoom in on the photo I took.
Back in a few after I upload the photos.
Walked through my cousins yard - decimated just like mine. He has a lot of mature oaks that look terrible. And the smoking gun, the cupped grapevine leaves.

 

[farmer steve]

Here's a (maybe not)quick story. Neighbor A was raising corn and pumpkin in a yearly rotation.
Neighbor B has been raising corn, wheat and soybeans in rotation across the
road from B. 100 yards or so.
Me at the same time raising zucchini across the road from B.
B approaches me and asked if I had any herbicide damage to my stuff. NO. A accuses B of drift damage on his pumpkins. I remind A that B followed corn with pumpkins within about 12 months and that most corn sprays requires an 18 month plant back restriction to plant produce.
I never heard about the conversation between the 2 but A no longer grows corn on his place. All produce now.
All 3 of us have private applicators license.
My point is not all applicators read or follow the label as this may be the case here.

 

[TNTreeHugger]