‘Minority’ Crop Growers and Beekeepers Suffer Defeat in Pierre

A bill (HB 1202) heavily supported by specialty crop growers, organic growers, beekeepers and even conventional commodity crop growers was defeated by the South Dakota House Agriculture and Natural Resources Committee on Feb. 23, 2021.

This simple to implement bill would have required limited financial responsibility (surety bond, insurance, etc.) by commercial pesticide applicators for bodily injury or property damage in the amount of one hundred thousand dollars. This is much like the required on-road vehicle insurance requirement of the state; however instead of protection from vehicles doing damage, it is protection from off-target invisible chemical pesticides. 

In the discussion on HB 1202, eleven of the twelve members of the House AG Committee sided against the law that almost every other state in our area has on the books. Lobbyists representing big agriculture cooperatives, chemical manufacturers, pesticide dealers, commercial pesticide aerial and ground applicators testified against the bill and to this observer, seemed to have the common-sense needed bill defeated before any testimony began. Proponents of the bill were asked numerous times to hurry up with their testimony.

Specialty crop growers and producers say the bill should be about public health, food safety, property rights fairness and financial accountability and not, commodity crop growers versus all others. No proponents of the bill proposed the elimination of any pesticides, just their proper use and financial responsibility by the commercial applicator when damage occurs. 

During testimony it was pointed out by the South Dakota Specialty Producers Association (SDSPA) representatives that pesticide drift is happening at an alarming rate to crops, trees, bees and other non-targeted resources. This is occurring to both conventional, specialty crop farmers and beekeepers, and is costing thousands of dollars per farm in most cases. Some pesticide damaged farmers have even been physically drifted on.  

As expressed by some of the legislators after the session, you can always sue the applicator, can’t you? Proponents of the bill have stated that this is almost an impossible task for most farmers.

One of the problems pointed out is that little recourse exists when a damaged grower cannot get a law firm or attorney to take a case against a commercial applicator who sometimes has little assets and no insurance. 

What makes it more difficult is the fact that the South Dakota Department of Agriculture (SDDA) does an investigation when a complaint is filed but does not release the investigative data to the damaged party except for determining what pesticides did the damage. Currently, most of the information in the SDDA investigative reports is available only by subpoena. For most growers this makes it cost prohibitive. Furthermore, before an attorney takes a case they first want to determine if a case has merit and without this investigative data from SDDA, attorneys are reluctant.

Lost was the fact that if commercial applicators had mandated insurance it would actually lead to settling many crop damage issues outside of court or even outside of any insurance claims. If passed this bill would also tend to weed out, by the insurance companies, any applicators who have repeated verified damage claims. 

During discussion of HB 1202 some members of the legislative committee expressed the laissez-faire attitude that if someone buys land in South Dakota and tries to grow fruit, vegetables, grapes, hops or any number of non-pesticide resistant, non-commodity crops, they should expect to be drifted on and damaged. 

This proposed financial responsibility bill for commercial pesticide applicators was a simple bill and is state law in various forms in ND, IA, MT, MO, KS, IL, MN, CO, WY. As it is today, South Dakota is essentially a sanctuary state for commercial pesticide applicators without financial responsibility or insurance for bodily injury or property damage. 

Without mandatory financial responsibility in South Dakota, it is highly recommended that everyone hiring or contracting specialize work involving pesticide applications ask for proof of insurance or financial responsibility to cover bodily injury or property damage. Research has shown that almost all private applicators are covered by their homeowners or farm policies, however, private applicators should check to make sure their insurance covers off-site bodily injury and property damage. 

The SDSPA strongly encourages producers to register their specialty crops, organic crops and bee yard information into the DriftWatch and BeeCheck sites at the state approved https://fieldwatch.com crop registration site. This site functions as a tool intended to enhance communication that promotes awareness and stewardship activities between producers and applicators. Pesticide applicators are supposed to log into this site before applying in an area and check for registered bee sites, organic crops and sensitive specialty crops. 

If someone suspects pesticide damage they should go to the SDDA website, obtain or fill out a Pesticide Incident form directly on their website. The SDDA does not accept anonymous complaints. If you believe that you, a family member, your pet, or livestock has been harmed from pesticide exposure, immediately seek medical or veterinary attention. You may also want to visit the SDpoison.org website or call 1-800-222-1222 for emergencies or questions. 

Testimony on HB 1202 can be heard at: https://sdpb.sd.gov/SDPBPodcast/2021/hag26.mp3#t=6982