Yard & Garden Line News Volume 5 Number 10                                                               July15, 2003

Features this issue: Chemical Trespass and Negligence The Considerate Gardener's Guide to Pesticides - Part I. Stalk Borers Springtails Editorial Notes

Chemical Trespass and Negligence
Lorrie Stromme, Hennepin County Master Gardener and lawyer

Herbicide-injured Ural False Spirea Photo credit: Beth Jarvis

We're all familiar with the concept of trespass: going onto someone else's land without permission. And we accept that the trespasser is liable to the landowner for any damage done. But what happens when it's a pesticide that "trespasses" onto the land? For example, a herbicide drifted onto an organic vegetable farmer's crops during his neighbor's aerial spraying. The farmer lost his "organic" certification. He won his case against his neighbor and was awarded damages for his lost profits. Courts have also recognized liability for pesticide injuries to dairy herds, bees, hogs, minnows, the finish on cars . . . even turkeys who became frightened by a plane during aerial spraying and ran into troughs and other obstacles in their pens, causing their deaths.

But it's not always that clear cut. A beekeeper was unable to prove that his neighbor's pesticide entered his hives, because the court found that his bees may have "trespassed" onto the neighbor's crops that had been sprayed with a pesticide toxic to bees. In a recent Minnesota case, a farmer aerially applied a sulfonylurea herbicide called "Harmony" to his wheat fields. A week later, plants in a nearby sugar beet field became yellow and wilted. The evidence in that case showed that the applicator acted reasonably and prudently when spraying the herbicide and was not negligent. Based on expert testimony, the court concluded that sugar beet maggots could have caused the problem rather than the herbicide.

There are several legal theories for imposing civil liability in pesticide drift cases, including negligence, strict liability, nuisance, and trespass. Negligence is the most common assertion. With pesticide application, liability can be imposed when someone fails to use reasonable care or to follow the label instructions when spraying. Proving the case can be difficult. You must be able to prove what particular chemical was used, the source of the chemical drift, and a connection between the drift and the actual damage done. Even if causation is established, you must prove that the person applying the pesticide was negligent. Expert testimony will be needed (ka-ching!). That means finding someone that the court recognizes as a bona fide expert in an area, as well as the possibility of a "battle of the experts" when each side retains its own expert.

Most of the court cases involve aerial spraying and significant losses from pesticide drift: acres of crops, a dairy herd, 365 hogs, or 200,000 minnows. The "garden variety" dispute between neighbors is not usually taken through the trial and appeal process, because of the financial realities of paying for lawyers, experts, scientific analysis, and other litigation costs. Not to mention the time involved. Remember the sugar beet case? That took place in May1991, and the appellate court handed down its decision in December 1996. So, heed Beth and Dean's advice about neighborliness. Spend your time and money in your garden, instead of in courts.

The Considerate Gardener's Guide to Pesticides - Part I.
Dean Herzfeld, Coordinator, Pesticide Applicator Training
Beth Jarvis, Yard & Garden Line

Boxelder shows injury from lawn application Photo credit: Beth Jarvis

Accidental damage caused by a neighbor's herbicide application can be a bone of contention between neighbors. Things can get tense. People become guarded, angry and possibly hostile.

In this two part article, we're going to look at the problems, who the regulating agency is, what steps should be taken, what the legal aspects are and, most importantly, what you should know to be a considerate neighbor before you get out the herbicide and start treating your lawn.

The Problems

What are common thoughts and reactions of someone who suspects their plants were injured by pesticides applied by a neighbor?

The first questions are often about the outcome of the unintentional damage. Is garden produce going to be safe to eat? Will annual flowers die or recover? Will there be lasting damage to landscape plants? To make those determinations, you need to know what was used.

In a typical case, someone notices abnormal plant growth. Some herbicides are actually a form of a plant growth hormone and will cause misshapen growth. Others affect plant metabolism. Plant owners often don't realize anything has happened until the plants show injury and by then, it's too late to determine what may have been applied.

Pesticide analysis needs to be done shortly after application. Herbicides often begin to break down quite quickly. Unlike the labs on TV shows, real labs can't stick a few dead leaves in a machine and get a reading of what's there. Pesticide residue testing runs several hundred dollars per test. The tests are done to determine the presence of a substance, so you need to know what might have been applied, say dicamba or glyphosate.

The best the Extension Service can do is to examine plant material and render an opinion if injury is consistent with herbicide injury. Sometimes it's easy to spot classic symptoms, other times, it's not.

The Law

Most pesticide laws and regulations are overseen by the US Environmental Protection Agency and the Minnesota Department of Agriculture. State pesticide law can be more - but not less- restrictive than federal law. Minnesota law has this to say:

A person may not direct a pesticide onto property beyond the boundaries of the target site. A person may not apply a pesticide resulting in damage to adjacent property. (Chapter 18B.07 Subd.2.3(b).

Beyond the law there are a number of guidelines for considerate neighbors to follow when using pesticides.

o Be sure there is no other option than using a pesticide for your problem

o Check to see the pesticide you are selecting is labeled for your use and will provide effective control for your pest problem

o ALWAYS read and follow the label directions

o Keep pets and children (yours and your neighbor's) out of the treated area during and after application.

o Spray when the wind is calm (less than 10 mph) and blowing away from sensitive plants and areas in both your and your neighbor's yard. Be especially careful near fruits and vegetables.

Finally, to be a considerate neighbor it is simply best to just visit with your neighbors. Let them know what you are doing, that you are taking precautions to minimize problems, and you are following all label directions.

Next issue: What to do if you suspect pesticide damage to plants.

Stalk Borers
Jeff Hahn, Assistant Extension Entomologist

Stalk borer, in and out of stem. Photo credit: Dept. of Entomology

Stalk borers are occasionally found in home gardens. They have a very broad host range, attacking over 200 species of plants, including vegetables, such as tomato, pepper, potato, corn, eggplant, asparagus, and bean, and perennials, including lily, anemone, canna, carnation, cosmos, daisy, gladiolus, hollyhock, iris, peony, phlox, and purple coneflower.

They are also known to attack weeds, including ragweed, quackgrass, groundcherry, goldenrod, lanbsquarters, smartweed, and thistle, as well as fruits, such as currant, strawberry, gooseberry, and cantaloupe and crops, including alfalfa, barley, oat, red clover, sugar beet, sweet clover, and wheat. They have even been known to attack the twigs of some trees.

Stalk borers overwinter as eggs on plant stems or on the ground on fallen leaves. They hatch sometime in May and usually attack grass stems first. As they become older and larger, they outgrow the plants they are infesting. They move at night to bore into bigger stemmed plants. They may actually move several times during their larval stage, depending on the availability of food. Stalk borers are aggressive and cannibalistic and you rarely find more than larva per plant.

The larvae are a little over one inch long when fully developed. When fully grown, stalk borers have an orange head and most of its body is chocolate brown. There is a white stripe that runs on the top of the body from the head to the end of the abdomen and another white stripe running along the sides of the body from the middle to end of the abdomen. There are also a couple of short white stripes on the side of the body near the head. Stalk borers have a smooth body with only a few hairs on it.

The larvae feed for about two to three months before moving into the soil to pupate. They remain as pupae for about three weeks before emerging sometime in September as adult moths. They lay eggs primarily in the folds and creases of grasses where they remain until the following spring. There is one generation per year.

The first sign that you have stalk borers infesting your plants is wilting leaves. Sometimes, the plant may break off, especially after strong winds, to let you know your plant has a pest. You may also see the small hole they create when they enter the stalk. When you cut into the stem, you'll find it hollowed and possibly even see the culprit still there. Younger plants are killed when attacked by stalk borer. Plants with larger, more woody stems may survive an infestation. Fortunately, this is a infrequent problem in home gardens and you are likely to only find a few stalk borers at a time there.

By the time you notice a stalk borer problem it's too late to save the plants in most cases. Your best bet is remove infested plants and kill the stalk borer as it can move on and attack other plants. It also reduces the number of stalk borers that survive to lay eggs later. It is possible to cut into infested stems with a very sharp knife to kill the stalk borer and then bind the plant and hope it survives (there isn't much to loose by trying).

Problems are more likely to occur in garden with adjacent grassy, weedy areas. Control weeds to help reduce the risk of stalk borer infestations. If this isn't possible, keep weeds cut short, especially in the spring when stalk borers are looking for feeding sites, and late summer/early fall when adults are laying eggs. Insecticide treatments is not suggested. Stalk borer problems are too sporadic making it difficult, if not impossible, to predict which plants will be attacked and when.

Springtails
Jeff Hahn, Assistant Extension Entomologist

Springtail, close-up. Photo credit: Dept. of Entomology

Watch for very small jumping insects known as springtails. Although there are superficial similarities between springtail and fleas, they are both small, wingless and can jump, you can distinguish between them. Fleas are flattened from side to side and have large, conspicuous back legs. They are generally associated with animals and can bite people. Springtails are elongate and cylindrical with normal sized legs. They are associated with damp conditions and do not bite people.

Springtails are generally dark colored, although some are light colored and a few even have patches of iridescence. Springtails have a forked appendage called a furcula located at the tip of their abdomens that they ‘cock' underneath their bodies. When they release it, it propels them into a jump. By contrast, other hopping insects use their legs to jump.

Springtails are one of the most abundant insects in nature, although we rarely see them. It has been estimated that millions occur in one hectare (about 2 ˝ acres). They are commonly found in the soil, under leaf litter, under bark, and in decaying logs where they play an important role in decomposing and recycling organic matter. Most springtails feed on fungi and decaying vegetable matter.

Springtails. Photo credit: Dept. of Entomology

Occasionally, springtails are a nuisance inside homes. Because of their small size, they can easily enter buildings under doors and through small cracks in the foundation. Because they are associated with damp conditions they are often found in areas near plumbing leaks, excess condensation or other areas with high humidity. Springtails can also be found in the soil of potted plants, especially if they are overwatered. They don't cause any particular damage but can be annoying, particularly when they occur in high numbers.

To control springtails, remove leaves, mulch and other organic material from around the foundation. Seal any obvious cracks and spaces in the foundation (although admittedly this will be difficult when trying to keep springtails out). Be sure water drains away from the foundation.

Inside the home, correct leaks, condensation problems, and other sources of high humidity, especially in areas where springtails are found. Also run a dehumidifier or a fan to help dry out areas and reduce springtail numbers. Springtails are generally a temporary problem and die when moisture is sufficiently reduced. Insecticides labeled for use indoors can help reduce a springtail population but will not eliminate them if a moisture problems persists.

Get the low down on this month's insect pests at Insects http://www.extension.umn.edu/projects/yardandgarden/EntWeb/Ent.htm
Editorial Notes

Minter Gardens visitor. Photo credit: Beth Jarvis

The lady in the photo was spotted last July at Minter Gardens just outside of Chilliwack, BC. Minter is about 90 minutes east of Vancourver. Lovely country! Beautiful garden. There's even a discount coupon at their website at: http://www.mintergardens.com/minter.htm . Best thing, there were virtually no mosquitos in BC.

Speaking of which, I've heard several people claim that mosquito repellant caused damaged to garden plants. A colleague reported dead grass at the family cabin in the spot where his sister douses her children. The 'skeeeters are thick and hungry, making repellent necessary. So, if you notice unexplained bleached spots on your plants give a thought to whether this is where you or your family spray down before venturing into the yard.
Next issue, we'll continue the discussion about pesticides and your neighbors. In the future, you'll also get to meet Dr. Tim Kurtti, who does deer tick research. In a bit, we'll hear about the closest thing we have to Japanesese maple. Dave Hanson, who works w/Gary Johnson in Urban Forestry, has agreed to pen a piece dispelling myths about tree roots, be they heaving sidewalks, invading basement walls or sewer pipe, or whatever.

Please feel free to cut and paste any of the articles for use in your own newsletters. All we ask is that you give our authors credit.

Back issues Yard & Garden Line News are on the Yard & Garden Line home page at www.extension.umn.edu/yardandgarden/. Our home page has clickable links to most of the components of the Yard & Garden Line, such as Bell Museum of Natural History, INFO U and the Soil Testing Lab.

Deb Brown answers gardening questions on Minnesota Public Radio's (MPR) "Midmorning" program on the first Thursday of every month at 10 a.m. Katherine Lanpher hosts the program that is broadcast on KNOW 91.1 FM, and available state-wide on the MPR news radio stations.

If you would like to receive an e-mail reminder when the next issue of the Yard & Garden Line News is posted to the web, just send an e-mail to: listserv@lists.umn.edu (note: the second E in listserve is omitted), leave the subject line blank, then in the body of the message, type: sub yglnewslist or to unsubscribe, enter: unsub yglnewslist

Happy gardening!

Beth Jarvis
Yard & Garden Line Project Coordinator


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