Lawsuit over pesticide drift may prompt push for reform
MOORETON, N.D. - Don and Cathy Heitkamp believe they’ve been battling a “phantom sprayer” in their quest to get to the bottom of a pesticide drift incident that damaged their crops.
The damage, which occurred in June 2010 to 60 acres of wheat and soybeans on their Richland County farm near here, resulted in a financial settlement from an aerial sprayer in February 2012.
The Heitkamps believe the sprayer was at fault – a conclusion the North Dakota Department of Agriculture disputes, contending its inspectors cannot prove who is responsible because a second sprayer purportedly was active in another nearby field five days earlier.
Enter what the Heitkamps call the “phantom sprayer,” their term for a spraying application they say is not supported by available records but provides an excuse for Agriculture Commissioner Doug Goehring’s department to avoid citing and fining the sprayer at fault.
“It’s my German stubbornness,” Don Heitkamp said, explaining why he continues to press for administrative action even after he’s reached a settlement, a sum he said didn’t cover his crop loss and legal fees. “Vindication is the main thing.”
The Heitkamps also say the fact that state pesticide regulators never cited the aerial sprayer for a violation made it more difficult for them to get the settlement from the sprayer’s insurance company, and increased their legal costs.
“We were harmed by the pesticide department,” Cathy Heitkamp added, referring to the pesticide division of the state Department of Agriculture. “It’s really caused some hard feelings with neighbors.”
But Goehring said his inspectors couldn’t prove conclusively which of two possible sprayers damaged the Heitkamps’ crops.
“As a state agency, as a regulatory agency, we cannot just go handing out fines without proof,” he said. “We have two individuals and it’s not conclusive who did what.”
The Heitkamps have been asking legislative leaders to intercede in the case and arrange for a hearing before the Pesticide Control Board to determine if, among other things, the earlier spraying actually happened.
So far that hasn’t happened, but two lawmakers familiar with the Heitkamp case said they plan to introduce legislation to clarify what pesticide inspection records must be kept and under what circumstances they can be made public to shed more light on the process and to avoid confusion.
The dispute had its beginnings on June 18, 2010, when Don Heitkamp noticed his wheat field was turning brown. Four days later, when he re-checked the field, it appeared the 40-acre wheat field was dying.
Some nearby soybeans also were damaged. An agronomist agreed with Heitkamp that it was a “classic case” of pesticide drift from a nearby field.
But from which field? Heitkamp reported his crop damage to the state Department of Agriculture on June 23. Goehring declared the case officially closed, without a finding of any violations, almost four months later in an Oct. 15 letter to the Heitkamps.
In 2011, the Heitkamps hired a lawyer and filed a lawsuit against a neighboring farmer and an aerial sprayer hired to spray his fields on June 14, four days before Don Heitkamp first noticed his damaged wheat.
Through the litigation, the Heitkamps’ lawyer, Zenas Baer, was able to subpoena records to obtain investigative notes and reports from the Department of Agriculture’s pesticide division involving their case.
Because no violations were found, those records remained closed to the public by law and only became available through the court system.
The Heitkamps complained to Goehring and others that his pesticide inspectors’ investigation of their complaint was shoddy and incomplete, forcing them to do their own detective work.
They said the inspectors failed to turn up the June 14 aerial herbicide application that damaged their crops, first detected by Don Heitkamp on June 18 when he was checking his fields.
The June 14 aerial spraying is what the Heitkamps believe damaged their crops, and resulted in the settlement with the sprayer.
Although the state inspectors’ initial investigative reports make no mention of a June 9 ground spray pesticide application of another neighboring farmer’s field, that documentation appeared much later when the Heitkamps obtained a record from the aerial sprayer’s lawyer.
The neighboring farmer, Joe Klosterman, sprayed a field on June 20, 2010, and filled out a pesticide application report. He added a handwritten note on that report – “Done 6-9-10” – indicating he also sprayed another of his fields 11 days earlier on June 9.
No other record of the June 9 pesticide application has been made available to the Heitkamps or their lawyer.
The wind direction on both June 9 and June 20, however, would have carried the pesticide Klosterman sprayed away from the Heitkamps’ fields, they contend, citing weather records.
Goehring and his inspectors concluded, however, that because of the other field spraying near the Heitkamps’ damaged field around the same time, they could not prove which spray caused the damage.
An investigator for the U.S. Environmental Protection Agency also examined the Heitkamps’ pesticide drift and closed the case in August 2013 without finding violations. The state Department of Agriculture enforces certain farm pesticide regulations under a cooperative agreement with the EPA.
Baer, the Heitkamps’ lawyer, obtained the reports of the EPA investigator, Dan O’Malley, through a Freedom of Information Act request.
Although the interview subject’s name was redacted in the copy of O’Malley’s report released to Baer, the details matched the June 20 spray record and June 9 spray annotation made by Klosterman, who did not respond to The Forum’s interview requests.
“The June 20, 2010 Application Record prepared by (name left blank) does document a second application on June 9, 2010. (Name blank) states that (blank) annotated the June 9, 2010 application on the June 20, 2010 application record for the benefit of (name left blank) NDDOA,” the initials of the North Dakota Department of Agriculture.
The sprayer O’Malley interviewed on April 23, 2013, also said he was never asked to provide the record during an earlier investigation, and said he destroyed all of his records in winter 2012-13 except the June 20, 2010, record, a date Klosterman sprayed.
Klosterman was not required to keep the pesticide records for June 9, 2010, because he used a general-use pesticide, not a restricted-use pesticide, Goehring told The Forum.
Pressing for answers
Sen. Jim Dotzenrod, D-Wyndmere, whose district includes the Heitkamps’ farm, contacted state agriculture officials on their behalf. He tried to prod Goehring to release more information and cited what he regarded as flaws in the investigation and maintenance of pesticide records.
In a letter to Goehring written June 25, 2012, Dotzenrod refers to conversations he had with Jim Gray, who heads the pesticide division in Goehring’s department. Gray declined to be interviewed by The Forum, and referred questions to Goehring.
“I have been through these issues with Mr. Gray, expressing my concern that this record appears to have been tampered with and that someone should put some effort into finding out how this record ended up with this many problems and contradictions,” Dotzenrod wrote.
“So far, there has been almost no concern on the part of Mr. Gray or anyone else about these issues that I have raised about this record,” Dotzenrod said in the letter to Goehring.
If unresolved, the senator added, the problems will have “chipped away at the integrity of the regulatory system,” making violations more likely.
Dotzenrod said he still has not received a written response to his letter to Goehring. Goehring said he responded by phone, and had frequent conversations with Dotzenrod and others at the time about the issues.
Goehring said no pesticide records were tampered with, and said the Heitkamps continue to press their complaints about his inspectors’ inconclusive findings because they don’t like the results.
The subsequent EPA investigation, which also cited no pesticide violations, supports the state’s handling of the case, Goehring said, adding that the Heitkamps have the record of the June 9 spraying.
“No one has anything against Don and Cathy Heitkamp,” he said. “They just don’t like the findings, and I don’t know how to change that,” reiterating that he needs solid evidence to find a violation.
Seeking new law
Dotzenrod and another legislator, Sen. Tim Flakoll, R-Fargo, said they plan to introduce legislation to clearly spell out when investigators’ pesticide records can be made public, to clarify and increase the transparency of the process.
Goehring said he welcomes that legislation. So would the Heitkamps.
“These people had us chasing phantoms,” said Don, who is a distant cousin of U.S. Sen. Heidi Heitkamp, D-N.D.
Don Heitkamp added that their inability to obtain investigative records, kept confidential because no violations were found, added to their costs.
They settled, he said, for less than a third of the amount of their crop damage on Baer’s advice to avoid the expense of taking the case to trial.