Idaho Herbicide-Crop Damage Suit By 130 Farmers Nears End

August 25, 2009

After nearly 70 days of testimony, a federal case involving thousands of acres of herbicide-damaged farmland neared an end last week as attorneys in Idaho gave closing arguments over who was to blame for the damage.

More than 100 people packed the courtroom and overflowed into the hallway as the closing arguments began in Boise’s U.S. District Courthouse.

The six-year-old case pits more than 130 farmers against the Bureau of Land Management and the maker of the powerful herbicide Oust, E.I. DuPont de Nemours and Co.

Among the questions posed in the case: Was Oust labeled and promoted correctly by DuPont, did the BLM apply it properly, did the agency know that the application would put nearby crops at risk, and was the federal government negligent when it decided to use the herbicide?

In an agriculture-driven state — where many lawmakers are ranchers and farmers, and where some of the most prominent residents rose to power from potato fields — the emotions behind the lawsuit were high.

The lawsuit arose after range fires burned across southern Idaho in 1999 and 2000 and federal land managers decided to combat invasive weeds by spreading Oust on scorched public land. But the winds picked up, the powdery herbicide blew across nearby crops, and farmers watched as seasons of work wilted and died.

Tests eventually showed that the soil was barren, tainted with the broad spectrum herbicide. The cropland eventually recovered, but not before the farmers say they lost millions of dollars.

DuPont officials have maintained that they did nothing wrong, and that the BLM is to blame for misusing the product.

“Everybody who testified about the product says it works,” attorney J. Walter Sinclair told the jurors Wednesday. “It does precisely what DuPont says it will do — and DuPont says, ‘Do not allow it to get on crops.”‘

Oust has been safely applied to between 25 and 30 million acres since it was put on the market 27 years ago, Sinclair said. There have been a handful of previous lawsuits over the product, mainly focused on agencies and companies that used the product along highways and rail lines, Sinclair said.

But all of them were in the mid-1980s, he said, and DuPont addressed any issues by changing its label to offer better guidance to users. The label was most recently changed in 1993, with no apparent problems since _ until the BLM improperly spread the product on the burned land in Idaho, he said.

But Christina Falk, the U.S. Department of Justice attorney representing the Bureau of Land Management, said the BLM’s contractors did apply the Oust correctly, according to the label instructions.

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, Falk said. BLM took steps to mitigate any risk, only applying the Oust while it was raining, she said. 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.

“There can be no doubt, ladies and gentlemen, it rained. It didn’t rain a little, it rained a lot,” Falk said.

The fault lies with DuPont, Falk said, because the company did not warn BLM that the risk of the herbicide spreading continued for months — particles of the herbicide could blow to nearby crops as much as six or eight months after it was applied.

“Do they tell you anything else to do to reduce risk? Do they tell you what the risk is? No,” Falk said of DuPont. “They tell you it’s ideal for applying in arid areas.”

Earlier in the trial, some of the farmers told the jury they still suffered from lingering effects of the poisoned land. Plaintiff Tina Clinger of American Falls said her family’s beet farm did so poorly that they couldn’t cover the equipment and operating loans, power bills and other normal expenses. The losses forced her father-in-law to refinance — when he was just one payment away from paying off the land completely. Now they have 30 years left to pay, and they owe $2.3 million, she said.

Deliberations are likely to take some time _ the jury instructions alone cover 50 typed pages, and the jurors heard–more than 66 days of testimony. If the jury sides with the farmers, it must determine the amount of damages to award each of the plaintiffs. The total could reach millions of dollars.

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