1. 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

2. 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

3. 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

4. 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

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

6. Often, its like this

7. That’s why we have
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

8. 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

9. 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”

10. 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….

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

12. 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.

13. 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.

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

15. Notify
Create a letter and send via certified USPS Mail

16. 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
Invite applicator to come inspect damage

17. 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

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

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

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

21. 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

22. Limitations of
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

23. 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

24. 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

25. Do not overlook your own physical & mental well being

26. Thank you for your attention