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Texas Agriculture Archive

October 17, 2003

A Farmer's Day in Court

By Lana Robinson
Field Editor

The mills of justice grind slow. Just ask Terry and Brandon Geye, farmers who grow peanuts, corn for silage, wheat, and run cattle on 3,000 acres west of Rising Star. It's been 10 years since the father and son lost 325 acres of irrigated peanuts which they allege in a lawsuit against American Cyanamid were damaged by a tank mixture combination of Prowl and Pursuit herbicides mixed and applied per manufacturer's instructions. Although product brochures explicitly stated that the two could be mixed to control weeds that interfere with peanut crops, the Geyes' claim the combination harmed their crop and substantially reduced their yield.

When they sued American Cyanamid, the chemical company invoked FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) preemption and won summary judgment in the trial court. But a Texas Court of Appeals and the state Supreme Court subsequently ruled that the suit was not preempted.

Next, American Cyanamid appealed to the U.S. Supreme Court, and the justices last November asked Solicitor General Ted Olson for the federal government's position. In May, Olson advised the high court to refrain from hearing the matter because it was not final for federal appellate purposes. The U.S. Supreme Court agreed and denied American Cyanamid's Application for a Writ of Certiorari. This effectively allowed to stand the Texas Supreme Court ruling which affirmed the right of Texas peanut farmers to sue a chemical company for property damage. After a decade of court battles, the landmark case is set for trial in Eastland County in Feb. 24, 2004.

The mood now is almost anticlimactic, but that first couple of years following the crop loss and initiation of the legal maneuvers were very stressful, according to Terry Geye, who has farmed peanuts for 30 years.

"We're talking about a significant amount of money in terms of inputs and what the peanuts should have made," says Geye. "It was Brandon's second year to farm, so it was hard on him. We had to sell some of his stuff. We eventually had to sell a combine, tractor and some poundage to clear out the note.There were depositions, soil tests, and lots of frustration."

Brandon Geye, who graduated from Tarleton State University with a degree in soil and crop science, knew something was amiss with the peanuts as the 1993 season progressed.

"You could see something was wrong with the plant development. The little feeder roots were burned off and the big root had some black on it. We compared that with peanuts in two other fields right next to them that weren't treated and those fields produced like they should," the younger Geye notes.

"The more we watered, the worse it got," Terry Geye recalls. "Seems like that just activated it more. We contacted the chemical rep first, to try to resolve it that way, but they just denied that it could be the product. They insisted that their product would do what they said it would do."

"They said it would control nutgrass. It did that all right," says Brandon Geye. "The problem is, it controlled everything else as well."

When it was clear that the Geyes and the chemical company were at an impasse, the farmers turned to Kerwin Stephens of Stephens & Myers in Graham for legal advice. Stephens, who grew up on a peanut farm in Comanche County, has been a staunch advocate for his farmer-clients. He will represent them in the upcoming jury trial in Eastland.

"Terry is a good farmer. He knows what he's doing," says Stephens. "I think we have a good case. We have pictures of the crop—both the treated and untreated fields. It's astonishing. They have magazine advertisements saying the products are safe and can be tank mixed together, as well as brochures. I think it may also be considered a false advertising case. We argued that the manufacturer had made promises in their ads that the EPA (Environmental Protection Agency) had never seen. Therefore, it ought to be actionable. Our agronomist stated in his opinion the chemicals are synergistic. When mixed together, each chemical is more active, creating a hotter effect. The herbicide damage to Terry's crop had a pruning effect on the roots of the plant."

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) directs the EPA to set label requirements for agricultural chemicals —warnings on use and safety and bars states from setting stricter rules. Stephens agreed with the Texas court ruling which said that the chemical industry had left itself open to such lawsuits because federal law does not require pesticide manufacturers to submit their pesticide efficacy claims to the EPA as part of pesticide registration (with the exception of pesticides that carry a public health claim).

Turns out the farmers were not only up against the defendant's attorneys but also Bush administration lawyers who wrote a brief arguing that the U.S. Supreme Court should nullify the Geyes' lawsuit. As a direct result of the peanut farmers' success in getting to proceed with the lawsuit, the federal government has since reversed its position in order to make it more difficult for farmers to sue herbicide and pesticide makers when bug and weed killers don't work as promised on their labels and damage crops. On Oct. 6, a USA TODAY article said the administration's shift is based on a reinterpretation of FIFRA. The EPA has previously asserted that the labeling law did not block such claims. It took that stand in the 1999 case of some California walnut farmers who sought $150,000 for damage to orchards from mixed pesticides that didn't warn against combined use. The farmers lost, but the federal position set a precedent for farmers in other pesticide damage cases. The new interpretation will require farmers seeking damages to defeat the govern-ment's position. The policy shift is a huge win for the pesticide industry, which pushed for the change.

So the victory in June that opened the door for farmers who may have suffered damages from a pesticide, herbicide, fungicide or rodenticide, to have those claims heard may have been short lived. Of the government's most recent stance, the Graham attorney says, "This is nothing but an inoculation to keep them (pesticide-makers) from being liable for any kind of damages."

Despite this new turn of events, the Geyes' lawsuit will move forward.

"The June ruling has nothing to do with the merits of the case. Mr. Geye still has to prove his case," says Stephens, adding: "We are very grateful that Texas Farm Bureau submitted an amicus brief. I think it is important that the courts see the impact these rulings can have on an industry. These rules we're fighting say it doesn't matter that a chemical company was at fault, that the farmer bears the cost, and I think that is wrong."

"We filed a brief in the Texas Supreme Court in support of farmers," says Texas Farm Bureau Legal Counsel Stephanie McMullen. "We argued that they they should have their claims heard. They deserve their day in court."

In the meantime, life goes on. Terry and Brandon Geyes continue to diversify their operation and look for marketing opportunities. The farmers own about 1,500 acres and lease the rest. They are losing one of their better leased properties at the end of the year because it sold recently. They were hoping to get a favorable result in court and to have recovered damages in time to have purchased it themselves, but it didn't work out.