In a local case being hailed across the state as establishing Colorado case law regarding “chemical trespass,” Delta District Court Judge Charles Greenacre ruled on July 5th that James Hopper of Duke Hill Road in Hotchkiss was permanently ordered to refrain from spraying for mosquitoes with malathion (Fyfanon) in a manner where it would drift onto a neighboring organic farm.
According to court documents the case began in 2010 when Mr. Hopper and others purchased a pickup mounted London Fogger from the Paonia Mosquito Control District. He began spraying his property with it and the neighbors, Rosemary Bilchak and Gordon McAlpine, filed a complaint with the Colorado Department of Agriculture (CDA) alleging that the spray was being applied improperly and entering their property. The CDA responded by taking tests of the Bilchak/McAlpine property, finding Malathion present, including in their home. The CDA then issued a pair of cease and desist orders to Hopper citing him for, among other things, not being licensed or properly trained in pesticide application. Hopper, according to the court document, later obtained a license, installed wind measuring devices and refrained from fogging within 150 of the neighbors’ property line. He also began notifying them before he sprayed.
Besides seeking organic certification for their property McAlpine is a leukemia survivor and is, as a result, chemically sensitive to pesticides. Hopper’s wife, Georgia, is a West Nile virus survivor. The virus is borne by culex mosquitoes.
Beginning in July 2011, the neighbors obtained court restraining orders preventing Hopper from using his London Fogger that season.
In his final judgment Greenacre ordered that:
1. All persons applying Fyfanon (on Hopper’s property) shall have a proper license issued by the Colorado Department of Agriculture;
2. Fyfanon shall be applied in accordance with the label directions;
3. All equipment used to apply Fyfanon shall be properly calibrated;
4. Fyfanon shall not be applied within 150 feet from Plaintiffs’ property and Defendants shall maintain the existing markers on their property to delineate a distance of 150 feet from Plaintiffs’ property;
5. Fyfanon shall be applied only when the wind direction and speed will not cause the Fyfanon to drift onto Plaintiffs’ property, and Defendants shall maintain their existing devices to gauge wind speed and direction; and
6. Defendants shall keep and maintain records of all Fyfanon applications.
Plaintiffs are awarded their costs and shall file a bill of costs in accordance with C.R.C.P. 121, section 1-22.
Elsewhere in the document Greenacre states that Hopper has the right to spray his own property with the above conditions but not to allow the spray to cross the property line. According to the attorney for Bilchak and McAlpine, Randall M. Weiner of Boulder, who specializes in environmental cases, says that this is the first successful case brought in Colorado to treat pesticide sprays as trespass. The case may prove to be pivotal in future cases of organic growers (or chemical sensitive persons) claiming to be damaged by neighbors spraying.
Over the course of the past several years Bilchak and McAlpine have been active with the North Fork Mosquito Abatement District with Bilchak being a current board member and McAlpine acting as the District’s accountant.
Hopper began spraying shortly after the District ceased regular fogging and moved to a mostly larvacide-based mosquito control program.
Georgia Hopper was elected to the Hotchkiss Town Council in April 2012.