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Farmers who lost crops after herbicide mishap still dealing with unsettled dust
Perry Van Tassell tills the earth to prepare his field for the next crop on land that was ruined by a chemical called Oust that was spread on nearby BLM land after a wildfire. His ruined crop is shown in a 2001 aerial photo at top. The chemical seeped into 118 area farmers' fields, damaging crops. The farmers have been embroiled in litigation with the federal government and DuPont, the maker of the chemical, since 2001. A jury trial verdict found both the company and federal agency liable for the damages in August.

PAUL - When a federal agency sprayed a powerful herbicide that eventually wiped out crops worth millions of dollars for 118 local farmers, some of them lost more than money.

Brad Rogers of Paul was one of the farmers. He lost his entire 1,100-acre farm, his only means of recouping the $1.5 million in losses he incurred from the misapplied herbicide.

"Three years into my losses the bank just said 'you're done,'" said Rogers, who farmed sugar beets, beans, wheat and hay for 22 years before he sold the farm to pay off his creditors.

Almost a full decade has passed since the Bureau of Land Management sprayed the chemical - called Oust - on wildfire-scorched public lands to control weeds. Eventually the wind blew the chemical onto surrounding farms, causing widespread damage to thousands of acres.

Now, although traces of the herbicide have disappeared from the land it once stripped, the legal dust has yet to settle.

On Aug. 24, a jury in U.S. District Court in Boise presided over by Judge B. Lynn Winmill found the BLM and chemical manufacturer E.I. DuPont de Nemours and Co. negligent in four sample cases of the mass lawsuit filed by a coalition of farmers.

The jury awarded the four plaintiffs more than $17.5 million, said Peter Houtsma, an attorney with Holland and Hart of Boise, the plaintiffs' attorney. With more than 100 more plaintiffs still to prove their damages during the next phase of the proceedings, Houtsma said, the total damages could exceed $200 million.

But with that many plaintiffs and the high possibility of appeals, the Oust case could drag on for years.

"I hope it doesn't take that long. Counting the year of the fire, we're into it nine years now," said Dan Schaeffer, who farms about 4,000 acres northwest of Paul.

Either way, Rogers' days on the farm have passed him by.

Rogers said the experience shook his confidence as a farmer to the core as he applied tried and true farming practices, which failed to rescue the decimated plants.

"All of the things I always did over the years that worked didn't work," Rogers said. "It changed my life. Farming was what I liked to do. A lot of people like me lost out."

A nightmare fire

In 2000, a wildfire that started on BLM land swept east of Hazelton, burning 20,000 acres and destroying four of Perry Van Tassell's pivot sprinklers, his hay and 450 acres of his grain.

"We were moving stacks of hay that were still on fire," Van Tassell said, who farms 2,400 acres of sugar beets, corn and hay 14 miles north of the Interstate 84 Kasota Road exit. "It was a nightmare."

For Van Tassell and others, the nightmare was just beginning.

In October 2000, a BLM contractor sprayed Oust to control invasive weeds before reseeding 17,000 acres burnt by range fires near American Falls and Paul.

"I thought the fire was bad, but that fall the winds came and it blew and blew," said Van Tassell. "I had to water the corn crops to wash the dirt and ash off before I could harvest."

The farmers didn't know that dirt and ash blowing onto their land from the BLM ground was tainted with the powerful herbicide, which becomes active with water and sterilizes soil.

In the spring of 2001, Van Tassell's crops did not grow properly. As he tried to determine the problem, he replanted his hay eight times.

"Nobody told us they applied Oust after the fire," said Van Tassell. "Our plants just wouldn't grow. They looked drought-stricken, but the more we watered them the worse they looked."

Substance to their claim

Paul farmer Dan Schaeffer said farmers in northern Minidoka County started comparing notes and found that everyone had the same problem with plants that were stunted and not developing. Schaeffer held the first organizational meeting for the farmers at his home and later became the group's official spokesman.

"We were all losing our crops and we were scratching our heads," Schaeffer said. "We couldn't figure out what was going on. This was affecting a lot of people: our neighbors."

Soil samples taken to the Idaho Food Quality Assurance Lab at the College of Southern Idaho in December 2001 revealed the presence of Oust. Many of the fields had too much of the chemical present to grow sugar beets, which are particularly susceptible. Worries would linger for years about how long it would take the chemical to dissipate and whether crops were safe for consumption.

A U.S. Congress appropriations committee set aside $5 million in damages for the farmers in the fall of 2001. But with mounting losses and no definitive answers as to how long the chemical would affect production, the farmers filed a tort claim in April 2002 against the BLM, DuPont and the two contractors who applied it.

"We had to keep farming, it was our livelihood," Schaeffer said. "It goes against everything we are about not to try to fix what was wrong."

The farmers continued to see crop damage through 2004 on more than 100,000 acres in 11 counties.

"It has been tough not only financially, but emotionally as well," Van Tassell said.

In for a long fight

The federal court trial relied on sample cases, with results applied to all claims, but even the number of sample cases caused a dispute. DuPont wanted one sample plaintiff. The farmers sought 10.

The judge decided on four, and selected Rod Jentzsch of Acequia, Gary Hansen of Rupert, and Lance Funk and Jerome Clinger, both of American Falls, to testify.

"By the spring of 2001 I knew I had big troubles with my crops," Jentzsch said. "The severity of your losses depended on how close you were to ground zero."

Jentzsch farmed several hundred acres of potatoes and sugar beets near Acequia, Minidoka and Kamima that lay adjacent to BLM land.

A jury ultimately found that DuPont was 60 percent to blame, and was responsible for selling a product that was defective, unreasonably dangerous and lacking adequate warnings. The jury assigned the BLM 40 percent of the fault, saying it was negligent in its decision to apply Oust on public land.

Proving the damages

Schaeffer said the case could quickly come to a conclusion if the BLM and DuPont settle with farmers. If that doesn't happen, the judge has 20 days from the verdict to declare how to set damages for the 114 remaining plaintiffs. It could be three to four months before the case receives another court date in front of the judge. Then there could be another three-month trial, depending on how the judge groups the farmers together as they prove their damages, Schaeffer said. The case will then begin the appeals process.

In a statement to the Times-News, DuPont said the company was disappointed in the verdict and is considering all options but will definitely appeal. DuPont also said it was encouraged that the jury assigned a "significant" portion of liability to BLM.

DuPont said in the statement that all of its crop protection products, including Oust, meet global regulatory standards for safety. In 22 years of use in the United States, this has been the only lawsuit it's been involved in, the company said.

According to court records, the jury also found DuPont guilty of violating the Federal Insecticide, Fungicide and Rodenticide Act and that it violated the Idaho Pesticides and Chemigation Act.

U.S. Department of Justice Civil Division spokesman Charles Miller said that in spite of last month's verdict and because no final judgment in the case has been made, he cannot say at this point whether the BLM plans to appeal the decision as well.

Laurie Welch may be reached at lwelch@magicvalley.com or 208-677-8767.

Read the answers to the 47 questions answered by the U.S. District Court jury in the southern Idaho farmers' lawsuit against the Bureau of Land Management and the herbicide manufacturer, DuPont, in the Aug. 24 bellwether verdict: PDF
Oust lawsuit timeline
Title: Oust

Date: Aug. 26th, 2009

A decision by the Bureau of Land Management to apply the DuPont herbicide Oust on 17,000 acres of public land in October 2000, resulted in more than 100 southern Idaho farmers filing a mass lawsuit against the federal governement and the corporate giant.

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