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PostPosted: Tue Aug 19, 2003 6:19 pm 
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Joined: Wed Jul 30, 2003 8:57 pm
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Location: Blooming Grove,TEXAS
We have 10 acres in Navarro County, and when we went to our property on this past Sunday (08-17-03) we were saddened to see that the Navarro County Electric Coop had gone down the road and sprayed herbicides under the electric lines. We had no trees or plants within 20 feet of the lines. We had a wild grapevine loaded with ripe grapes on our fence and a 4" caliper live oak we have been raising for 3 years which was scheduled for transplanting this winter. Now everything has been sprayed and killed. My question is, do we have any recourse to recover our loss, and how will this affect us since we were about to apply to the State for organic certification. We were outraged when we saw what they had done, and not sure if we have any legal recourse. Any info would be appreciated. Thanks in advance


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PostPosted: Thu Aug 21, 2003 3:32 pm 
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Location: Odenville,Alabama
I would be mad as hell! File a complaint against them. Get an attorney to help you.

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The entire Kingdom of God can be totally explained as an Organic Garden (Mark 4:26)
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PostPosted: Thu Aug 21, 2003 5:16 pm 
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Joined: Fri Jun 13, 2003 4:52 pm
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Location: Dallas,TEXAS
I agree with the Captain! Document - take pictures of the dead and dying plants..contact an attorney (who isn't afraid to take on something like this..perhaps the Sierra Club in Dallas can recommend an attorney who is up on these things) - but be sure and make sure that you have "evidence" of the damage done..and then write a letter to the editor of the Corsicana papers...find out what the chemical they used was, and then you can write to the manufacturer and get the MSR (manufacturer's safety report) on the agent used. And raise Cain! Sue the so-and-so's for ruining your organic certification - make sure that you have all the paperwork about organic certification on hand so that people will know how difficult it is - and also tp make sure that the public knows how difficult it is to get organic certification and how much damage this kind of indiscriminate spraying can do.


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PostPosted: Fri Aug 22, 2003 8:19 am 
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Joined: Fri Apr 11, 2003 10:19 am
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Location: Franklin,TEXAS
Unfortunately I think (hopefully I'm wrong) that they own the right-of-way around the utility lines and can do anything they want. I know they can come on private property without permission to work on the lines. They just did this in my county also, must be a state-wide program. It sure looks ugly with everthing chopped down or dead from poison. Not to mention the wildlife affected.


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PostPosted: Fri Aug 22, 2003 9:06 am 
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Joined: Mon Apr 21, 2003 12:41 pm
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Location: Austin
They probably do own the right-of-way, but that doesn't give them rights to do whatever they want, however they want. And it's a whole different issue if their actions affect your property outside of the right-of-way. Definitely a question to put to an attorney. You might try calling Nature Conservancy, also -- they may face issues like this on the edges of their properties.


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PostPosted: Fri Aug 22, 2003 7:49 pm 
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I hope you get this resolved to your satisfaction and that this helps clarify some of the issues whether you retain counsel or try to handle it yourself.
Were your plants within the utility's right of way? I suppose they weren't if they were on/inside your fence. If they weren't, the co-op should be liable for your damages. Before hiring counsel, I think I'd write them a demand letter telling them what you want and include your story and pictures. One problem with taking a situation like this to court is how to value the destroyed plants and your expectancy for organic certification (which really would have to be more than a speculation). The threat of litigation or bad press might entice them to be more receptive to your demand, though. Unless you could show that they sprayed your area with the intent to harm you or show a violation of a statute that authorizes punitive damages, punitive damages would be hard to prove/recover (although an inflamed jury could put the co-op into a settling mood). So, you may be restricted to compensatory damages. I wonder if the wind was > 5 mph when they sprayed. Confronting them now could alter their behavior near your property in the future, so that alone might make it worth doing. I don't suppose your property is insured under a policy that would cover such damage.

Some random thoughts. (1) If the co-op owns the right of way and your plants were not in the right of way (even if they were, that probably wouldn't address the fact that the land on which you would be trying to get certification is not in the right of way), then the co-op would seem to owe you the same or a similar duty that any adjoining landowner would owe to you. As such, the co-op "should" have some liability for negligent spraying. I doubt if utilities are immune from that duty, but maybe someone on the forum knows for sure. That would be the first question that should arise if you consult counsel. (2) If the co-op merely holds an easement, is that easement across your property (did you or your predecessors in interest grant the easement)? If it is, then there might be a breach of easement element to the situation. Those power transmission utility easements usually give the easement holder the right to clear vegetation on the easement, but you'd have to look at the exact easement language to see how much leeway they have. The right to clear vegetation shouldn't give them the right to damage your non-easement property. (3) If it does hold an easement and the easement isn't across your property, it seems the analysis in (1) still would apply. (4) If the co-op hired a contractor to do the spraying, the co-op still bears whatever responsibility there is, and the contractor might be liable as well. (5) If the spraying destroyed your ability to seek organic certification for all or part of your land, then that would seem to be in the nature of a taking/condemnation of that property right for which the co-op should have to pay. Obviously, proving the expectancy of certification and reducing it to a dollar value would be key issues, but they might be less difficult in a settlement context than they would be in court. (6) One problem might be convincing the ignorant co-op management that their actions damaged you and that you're serious about compensation. Maybe they're sensitive and informed and the problem was the negligence of the guy running the sprayer. If the co-op is insured so that you end up dealing with the insurer, one might expect a second layer of ignorance and insensitivity. A lawyer might be the antidote. (7) If you reach a settlement with the co-op, it should include language governing how they will behave in the future with respect to your property. Without speculating too wildly about that issue, it might involve giving you effective advance warning of an intent to spray, not spraying the segment adjacent to your property at all and using mechanical maintenance instead, allowing you to maintain the right of way so that they do nothing with it, etc.

Ideally, one would analyze your dead plants to ascertain what was sprayed on them, but maybe it would be more practical to collect specimens of your plants and the plants in the right of way so they could be tested later if necessary to show that the same product killed both. (Or you could try asking the co-op what was used.) Maybe you could seal them well enough in plastic to stomach putting them in your refrigerator or freezer. Whether that would preserve the agent analysis, is another question, but the less appealing option is to have them analyzed now. One thing I wonder about is whether they used one of the very potent and persistent SU herbicides and, if so, what that residue would do to that area over the long term. As for the certification application, I imagine those with less scruples might neglect to disclose the incident (which I am NOT recommending), although the State ought to figure that land close to a utility right of way probably gets/will be sprayed. Good luck.

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In theory, theory and practice are the same; in practice, they aren't -- lament of the synthetic lifestyle.


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 Post subject: No spray zones.
PostPosted: Sun Sep 14, 2003 10:45 am 
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Joined: Sat Sep 13, 2003 9:28 pm
Posts: 17
Location: winnsboro.s.c.
I have a power line running through our place.On each pole I have erected signs that state "Chemical injuried family no spray zone."I have been told if I keep power line cut they will not spray.If you can prove that there is damage due to chemical drift which is illegal as heck go after them and do not let up.Also after posting my signs I have the legal right to recieve a phone call if they plan to spray,if I do not recieve a phone call and they spray I will have legal course ,they avoid me and proprerty.
These applicators have their own insurance to cover such misuse.
LAP


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 Post subject: Organic Certification
PostPosted: Mon Oct 13, 2003 10:40 pm 
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Joined: Wed May 21, 2003 5:33 pm
Posts: 829
Location: Dallas,TX
If I am not mistaken, it takes 3 years to get certified once you apply so you should be okay as far as that goes. But you should, for yourselves and for all of us, pursue these villains and make them know that there are plenty of people who object with all their being to the use of such methods. You have our prayers and our backing.


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PostPosted: Fri Sep 17, 2004 11:44 am 
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Joined: Fri Sep 17, 2004 11:39 am
Posts: 1
I think you will find that the ROW provides the right to treat the ground in order to protect the power lines form shorting on tall vegetation. I would suggest you contact the ROW owner and propose a vegetation management plan that will not utilize herbicides to maintain low growing cover. I think you will find they will have no problem with you taking this responsibility. You will need to make sure that your interests are relayed to any contractors performing the work. In my experience the companies contracted the vegetation control work, but, the contractor was very cooperative and has good record keeping to notify owners along the ROW.

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Ken Thoman
Monmouth County Park System
New Jersey


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