SAN JOSE - Four years ago, the president of Jacobs Farm/Del
Cabo, Larry Jacobs, received an unfortunate phone call from
Whole Foods. The retail giant notified him that it was rejecting
the organic dill he had sold the chain because his culinary herb
had tested positive for pesticides.
"I said that's not possible," Jacobs remembered this week. "I
haven't sprayed pesticides since I got sick spraying pesticides
40 years ago."
As it turns out, Jacob's 120-acre herb farm, just north of Santa
Cruz in Wilder Ranch State Park, was victim of a hard-to-detect
but relatively simple scientific action: Pesticides applied in
liquid form to nearby Brussels sprouts later volatilized and
carried as a vapor, through wind or fog, to Jacob's dill.
This week, California's Sixth Appellate District Court upheld
Jacob's right to sue the pesticide applicator, Western Farm
Service, and let stand the $1 million award a jury handed Jacobs
two years ago. The ruling becomes final in 30 days.
"We're glad that the appellate court saw it the way we did,"
Jacobs said.
The decision is significant, say agriculture and law experts,
because it strengthens the case for organic farmers or anyone
else harmed by pesticides to seek legal recourse - even if the
pesticide, as it was here, is legally applied.
While state law restricts pesticides from being sprayed on
neighboring properties, which is known as pesticide drift, the
law doesn't deal specifically with pesticides
Attorneys for Western Farm Service argued that since the company had not run afoul of state law, Jacobs Farm did not have the right to sue.
The Court of Appeal, in its 32-page ruling filed Monday, dismissed this argument. The panel claimed the jury could hold the pesticide company liable for tainting the organic crops at Jacobs Farm.
Western Farm Service, which is now part of the larger Colorado-based Crop Production Services, declined to comment for this story, citing difficulty reaching their attorneys over the holiday week.
But in 2008, after the Santa Cruz jury issued the initial verdict against the company, an attorney for Western Farm Services told the Sentinel the decision would "impose a serious burden and concern to the industry."
The attorney maintained that a seller or sprayer of pesticide should not be held responsible for what happens days or weeks after chemicals are safely applied.
The favorable ruling for Jacobs didn't come easy. After getting the phone call from Whole Foods in October of 2006, the longtime grower started doing a little detective work.
He tested herbs he grew on other properties along the coast and came to the conclusion that the recent pesticide contamination was limited to his Wilder Ranch farm. Next, he combed public records to see what pesticides were being used within five miles of the property. Finally, he used the Internet to figure out which pesticides might be prone to travel by air.
"It didn't take more than half an hour to find several papers on the movement of these materials and their volatilization," Jacobs recalled. "It wasn't hard to make the connection."
That November, Jacobs reported his findings to the Santa Cruz County Agricultural Commissioner. But the office, which has the responsibility of enforcing state pesticide laws, found that Western Farm Service had not acted outside the law when spraying and, as such, would not be penalized.
In 2008, Jacobs took his case to court.
The county's Deputy Agricultural Commissioner Lisa LeCoump said this week's court decision against Western Farm Services changes the ground rules, making it clear that a sprayer can now be held liable even if no law is broken.
Jacobs said Tuesday he's glad the issue is behind him.
"It's no one's fault. Everyone was trying to do the right thing here," he said. "All we want is to be able to grow our crop and harvest it. That's all."
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