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August 27, 2009 4:41 PM

Idaho Farmers, Holland & Hart Prevail in Herbicide Case Against Government, DuPont

Posted by Matt Straquadine

A federal jury in Idaho has ruled in favor of four farmers who claimed their crops were destroyed by the Bureau of Land Management's use of a powerful herbicide. After a 17-week trial, jurors in the U.S. district court in Boise ruled that the government and the manufacturer of the herbicide must pay $17.8 million to cover the growers' losses.

At issue in the case was the bureau's decision to use Oust, an herbicide manufactured by E.I. DuPont, to kill off brush growth and prevent wildfires on government-owned land. But, the jury ruled, the government should have known that the herbicide it used, sprayed on fields by helicopter, would be caught by the wind and blown to adjacent farm land, causing the barley, wheat, potatoes, and beets grown on Idaho fields to wither or die. Worse, the government sprayed Oust repeatedly over the course of many growing seasons, between 2000 and 2004, causing the farmland to lie fallow for extended periods. (The suit was originally filed in 2002.)

Wednesday's verdict has the potential to grow exponentially, according to Steve Anderson, the Holland & Hart partner who tried the case for the farmers, because there are another 116 plaintiffs waiting in the wings. The trial judge elected to go forward with the claims of just four "bellwether" plaintiffs to test their viability. Now, with their win cutting a precedent, the other farmers must simply prove that the government's haphazard application of Oust cost them money.

Andersen says that, though the long trial was often exhausting, it was worth it to win an important verdict. "Our principal claim was that if you're charged with managing the land, you also need to be a good steward of that land," he says. "In this case the BLM and DuPont were irresponsible with the way they chose to tend government land and this should have consequences."

"They got beat. Badly. And I think they deserved to be," Andersen adds.

Walter Sinclair, a partner at Stoel Rives in the firm's Boise office who tried the case for DuPont, says his client is disappointed with the verdict and plans to appeal. Sinclair also notes that Oust has been on the market for 22 years, and this application of the popular herbicide is the first incident that has resulted in litigation.

Chris Falk, with the Department of Justice's civil division, tried the case for the Bureau of Land Management. Falk did not immediately respond to a request for comment.

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