North Dakota Century Code Chapter 4.1-33-18 Complying With North Dakota’s Alleged Property Damage Notification of Applicator Law North Dakota Century Code Chapter 4.1-33-18

The use of any pesticide has an element of risk Sometimes it is off target drift to an adjacent sensitive crop Or drift to a sensitive tree, shrub, or garden Or perhaps the sprayer is not cleaned out properly

Regardless, when it happens, the owner of the crop or property often suffers significant financial loss….. …..how that loss is to be recovered is one of the most difficult and frustrating parts of working with pesticides

In a perfect world….. An applicator would never make a mistake If an incident occurred, he would promptly report it to the injured party and work out a mutually agreed upon settlement The injured party would work cooperatively with the applicator to work out a realistic settlement If an insurance company was involved, they would quickly issue a claim

If that perfect world existed….. …..then this would be North Dakota in January!

Often, its like this

That’s why we have 4.1-33-18 The law tries to get the alleged applicator & property owner together so that the case does not require litigation in a courtroom It requires the property owner to notify applicator It allows opportunity for applicator to investigate If a solution cannot be found, then it allows for litigation to occur

What 4.1-33-18 is NOT A notice of legal action / summons to a court A finding of fact (after further investigation by the parties, it may be that the applicator is not be responsible) A statement of itemized losses or injuries A requirement to file a complaint with the North Dakota Department of Agriculture

In a nutshell, it is designed to put people on notice: “there is a problem with a pesticide application & the parties involved should work together to solve the problem”

The problem When you think there is a problem, you need to note the date and take action You have 28 days to notify the applicator(s)….OR….

…..Before 20% of the crop is destroyed or harvested Plowing or disking the crop down Harvesting

What is essential, is that the applicator be notified within 28 days or before 20% of the crop/field is destroyed so that the applicator has a fair opportunity to view and investigate the alleged damage.

The 28 days rule or the 20% rule can sometimes be in conflict The 28 days rule or the 20% rule can sometimes be in conflict. So choose the earlier of the two.

Read the law ASAP Available from your NDSU County Extension Agent Available from the ND Department of Agriculture

Notify Create a letter and send via certified USPS Mail

The elements of the letter Your contact information & date of the letter The applicator’s contact information Date you discovered the problem Property impacted, type of damage, legal description of the location Explain that you are notifying of alleged damage under 4.1-33-18 Invite applicator to come inspect damage

Do not! Say you are going to sue Say you sustained a big financial loss Imply the applicator was negligent or reckless Make it personal Make threats

Keep it professional and focus on the notification aspect of the law, especially make it a point to invite the applicator to come investigate

Ask your NDSU County Extension Agent for a sample letter Available as a hard copy Also available in Word format via the web

Send it certified mail Though not required by law, ask for “return receipt requested” so you have proof of delivery

If you fail to comply with 4.1-33-18? You will not be in violation of the pesticide law, but you will…… forfeit the right to sue for damages

Limitations of 4.1-33-18 Only preserves the right to sue, you have the responsibility to seek legal remedy, & only a judge can force payment Does not guarantee a response from the applicator Is not a substitute for taking other measures necessary to obtain compensation

When you have a problem….. Gather as many facts as possible, get pictures, etc. Consult with and get professional crop or horticultural advice Open up a channel of communication ASAP, visit via telephone and then in person Don't accept open ended responses Be realistic, do not ask for the moon Mitigate the damages

Prepare for a long road ahead Keep records Consult legal counsel Consult with your banker Consult with landlords Consult with the NDDA if you think the damage was egregious and requires punitive fines

Do not overlook your own physical & mental well being

Thank you for your attention