By Vicky Boyd
A Tracy crop dusting business accused of drifting a minute amount of sulfur dust onto an adjacent pasture and not establishing buffers recently won its battle against the state in a Sacramento court. In the process, Haley Flying Service spent 29 months and thousands of dollars in legal fees arguing against what it said was a “ridiculous” interpretation of the pesticide label.
“The label is in plain English, and it doesn’t communicate to the farmer that they would need a buffer for a pasture,” said Dhruv Khana, an attorney who represented the flying service. “The label is designed to accurately inform the user of the product. To me, this was one of the most absurd cases of my career.”
San Joaquin Farm Bureau President David Strecker said growers follow numerous rules and regulations when they farm next to an urban area. But they may face different scenarios if they’re in the middle of a rural agricultural area.
Sulfur is one of the most widely used pesticides in the state, and many formulations are approved for disease management in organic production, he said. As a dust, it has different physical properties than granular or liquid materials.
“Sulfur is a very unique product – you can’t help but have a little bit of drift,” said Strecker, who farms in the Delta.
In fact, the label recommends applying sulfur dust when winds are between 3 to 10 mph and avoiding dead calm situations, he said. If no wind is present to break up potential inversions, sulfur may hang in the atmosphere and not fall on the target crop.
Another characteristic of dusting sulfur is even minute amounts may be visible on plant material, potentially raising unfounded concerns, Strecker said.
29 months in the works
The battle began in April 2018 when Haley Flying Service applied dusting sulfur to winegrapes near Linden. A pasture was adjacent to the vineyard. The sulfur label specified application when winds were between 3 and 10 mph, and the flying service clocked winds of 3-4 mph during the job.
The pasture owner complained to the San Joaquin County Agriculture Commissioner’s Office about a plane dropping a whitish or yellowish cloud on the pasture, prompting the ag commissioner to collect samples.
The results showed 45.9 ppm sulfur. The ag commissioner’s office cited Haley Flying Service for drift. It also cited the applicator for not establishing a no-spray buffer around “sensitive non-target areas, such as hospitals, clinics, schools, residential areas and any other area designated by the county agricultural commissioner.” The buffer requirements are specified by the California drift restrictions on the pesticide label. Each violation carried a $700 fine.
About eight months ago, Khana argued their case before a California Department of Pesticide Regulation hearing officer since county ag commissioners are the enforcement arm of the department.
In dismissing the drift charge, Khana said, the hearing officer agreed with their assertion that 45.9 parts per million sulfur did not prevent normal use of the pasture when toxic sulfur levels are 87 times that.
But the hearing officer sided with the San Joaquin County ag commissioner and CDPR on the buffer issue. Haley Flying Service then took its fight to the California Superior Court in Sacramento County, where CDPR was represented by the California Department of Justice.
Superior Court ruling
The superior court agreed with Haley Flying Service that the dusting sulfur label did not require buffers for pastures. At the heart of the matter was wording that required a buffer around “sensitive non-target areas, such as hospitals, clinics, schools, residential areas and any other area designated by the county agricultural commissioner.”
If pastures and other rural areas should be part of the buffer requirement, Khana argued, the label should use the word “including” rather than “such as,” which means for example. Instead, the label provided examples of locales where people may congregate and that make them sensitive areas.
In his ruling, Judge James Arguelles said the “only tenable construction of the label is one limiting the buffer zone requirement to non-target zones like those enumerated and other locations designated by county (ag) commissioners.”
The ag commissioner had not designated a pasture as a sensitive area, and pastures were not akin to hospitals, clinics, schools or residential areas, the judge ruled.
Arguelles also ordered CDPR to set aside the $700 fine levied on the flying service. In addition, the court ordered the state to pay Haley Flying Service $20,000 to cover attorney fees and costs. Khana said the company actually incurred substantially more costs because it brought in a second law firm to represent it in superior court. But he wasn’t going to press the issue.
CDPR could have appealed the matter, but the 60-day period to do so has expired without the state filing.
San Joaquin County Agricultural Commissioner Tim Pelican said he looks to CDPR for any potential changes to enforcement or label wording resulting from this case.
The state plans to issue guidance to county agricultural commissioners’ regarding this case and enforcement of pesticide drift incidents, said CDPR assistant director of outreach and public engagement Leia Bailey.
The superior court ruling now becomes a matter of record. As a result, Khana said he hoped that no other applicators or farmers who apply dusting sulfur will have to experience the same nightmare.
“It’s kind of a tragic statement of Gov. Newsom’s California today. They beat up on farmers on non-issues, and they waste tax payers’ money,” said Khana, a winegrape grower and owner of a Gilroy winery as well as a Santa Clara Farm Bureau director.