Six years ago 130 farmers got involved in a lawsuit against both the Bureau of Land Management (BLM) and the maker of the herbicide Oust, DuPont de Nemours and Co. (DuPont). The end may be near in the suit as yesterday, Wednesday, August 19, 2009 closing arguments were given in the federal case as more than 100 onlookers listened in Boise, Idaho’s U.S. District Courthouse.The case involves the destruction of private cropland following an application Oust by the BLM on lands near the crops involved. The lawsuit asks whether Oust was mislabeled by DuPont, was it applied properly by the BLM, did the government know the application would “put nearby crops at risk,” and whether or not the federal government was negligent in deciding to use the herbicide.
As Rebecca Bone reports for the Associated Press, which can be accessed on the Forbes.com website, over 70 days of testimony was taken in the case to determine who is to blame for the damage to the farmland in question.
The lawsuit arose following the fires that burned across southern Idaho in 1999 and 2000. To combat the invasive weeds that helped spread the fire, federal officials applied Oust to the burned public land. As the application was being made winds carried some of the herbicide to nearby crops. The crops subsequently died.
As Boone reports, test following the crop destruction showed the soil was “tainted with broad spectrum herbicide.” While the cropland did eventually recover, the farmers who worked the land maintain they suffered millions of dollars in losses.
For their part, Dupont is blaming the BLM for misapplication of the product. The product hit the market 27 years ago, and according to DuPont attorney J. Walter Sinclair, the product has been safely applied on 25 to 30 million acres since then. Sinclair also points out the product warns against being used on crops. Sinclair also maintains that since the label was changed in 1993, following some lawsuits involving application of the product in the mid-1980s, there have not been any problems. That is, until the BLM applied the product in Idaho.
At the same time, Christina Falk, the Department of Justice attorney representing the BLM argues the contractors did apply the Oust according to the label. Falk argues:
The Oust label said that there would be a risk of the product spreading to nearby soil, but that the risk would be eliminated if there was rainfall within a few days of application . . . BLM took steps to mitigate any risk, only applying the Oust while it was raining . . . In fact, Falk contended, there was more than an inch and a half of rain in the days immediately following the application - and the overall season was wet.Since there was rain during the application, Falk believes the fault for the crop destruction lies squarely on DuPont’s shoulders. Falk contends that the company did not warn that the risk of the herbicide spreading actually continues for months following application.
Boone reports that deliberations could take a while. The jury was given over 50 pages-typed of jury instructions. Additionally, the jury heard more than 66 days of testimony. If the farmers win, the jury must also determine the damages award for each plaintiff. It is expected the total award could be millions of dollars.
To read the Boone article for the AP click here.
To read a previous United States Agricultural and Food Law and Policy Blog post on this case click here.
Posted: 08/20/09
