By WES SANDER

Capital Press

A state appeals court has said a pesticide applicator can be held liable for damages caused by drift despite having followed all regulations.

The unanimous decision, by a three-judge panel of California's Sixth Appellate District, said pesticide retailer and applicator Western Farm Service should have been aware that a chemical could escape into the air following application and settle on neighboring crops.

In 2008, The 120-acre organic operation Jacobs Farm/Del Cabo sued the company after organophosphate pesticides crept onto the Central Coast farm from neighboring fields of Brussels sprouts, rendering crops unmarketable in 2006-07.

Plaintiffs charged Western Farm with negligence, trespass and nuisance. A jury awarded $1 million in damages. The justices upheld that verdict, saying the fact that defendants followed pesticide regulations doesn't protect them from liability.

Especially in areas with the abundant fog of the central coast, pesticides can "volatilize," or re-enter the immediate atmosphere to settle elsewhere. The phenomenon is documented, and the applicator should have been aware of it, plaintiffs claimed.

Jacobs' lawsuit followed his unsuccessful attempts for redress through the county agricultural commissioner. Western Farm meanwhile took extra precautions, including substituting alternate pesticides, to prevent contamination.

Lisa LeCoump, deputy commissioner for Santa Cruz County, responded that existing laws only apply until a pesticide is applied. Therefore it can't regulate volatilization, she testified in the lawsuit.

But the court said existing law specifies that it "does not relieve any person from liability for any damage" resulting from pesticide use.