[photos and testimony about Crescent Orchard]
The Addison Eagle
February 28, 2002
Part 2:
Orwell Orchard Owner to Defend Right to Farm
Is the 'right to farm' under attack in Addison County?
By Paley Cowan
Eagle Staff
In the lawsuit brought against Crescent Orchard by its neighbors, George and Carole Trickett, the charge of pesticide contamination stands out as the most severe. While state agencies cannot find fault with the orchardists' adherence to agricultural regulations, this past summer, the Ochses were cited for a pesticide violation by the Department of Agriculture (DOA).
According to DOA documents, Peter Ochs Sr. was cited for mixing pesticides that resulted to either pesticide product dilution or resinate entering an unnamed stream on the Trickett property.
As early as August 1994, Plant Industry Field Agent Dominic Golliot warned Ochs that his pesticide mixing and storage area should be relocated to avoid runoff into a ditch that empties into a stream across the road. In July 1996 and again in June 2001, Golliot noted that Ochs had not moved the pesticide work area.
George Trickett is convinced that he suffered from pesticide poisoning in June 2001. Upon returning home one afternoon, on a short walk from his driveway to his front door, he smelled a foul, chemical odor, vomited almost immediately and has continued to suffer from headaches and other symptoms he links to toxins in the surface water on his property.
ORWELL ORCHARD
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Part 2:
Orwell Orchard Owner to Defend Right to Farm
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Agent Golliot subsequently obtained a sample from the stream on the Trickett's property and found 10.6 parts per billion of Simazine, an herbicide used to kill weeds around the base of trees.
DOA notified Ochs of the violation in September 2001 and imposed a $500 penalty. The fine was based on the potential impact on human health and the environment and that Ochs was previously aware of the potential for contamination.
Ochs claims that the Simazine could never be traced directly to Crescent Orchard and has appealed the DOA citation. He said that he and his son are certified in the proper use of pesticides, take continuing education classes to stay current, and they were both surprised to find themselves in violation of any laws.
Even so, Assistant Attorney General Michael Duane said that current discussions indicate that Ochs will relocate the pesticide mixing and storage area to an alternate site on his property to prevent further contamination.
"[Surface water contamination] is not acceptable and needs to be resolve," said State Agriculture Commissioner Leon Graves. "But I believe they will move it."
Annette Smith, executive director of Vermonters for a Clean Environment, a pesticide contamination watchdog group, is not convinced of DOA commitment to enforce the decision. She and the Tricketts believe the state is fostering a laissez faire attitude that gives the orchard "the right to poison," (a play on the state's right to farm law).
Graves defended his department. "We've done what we're supposed to do. When we find an actionable violation, we always respond to it," he said.
Phil Benedict, director of the Plant Industry Division of DOA, manages their pesticide programs. He has become very familiar with the Crescent Orchard situation over the past several years, authorizing numerous tests of the Tricketts' well and surface water in response to their complaints. He confirmed that prior to this current violation, the Ochses have been in complete compliance with DOA regulations.
"I don't like to see pesticides off-target or on other people's property, but this situation is fairly fixable and it looks like that's going to happen," Benedict said.
The amount of Simazine found in the Tricketts' stream was a relatively low level of contamination, Benedict said, and while it's not a good situation, toxicity without exposure does not equate harm to humans or animals.
"If we found this pesticide in a well or drinking water, you can bet we'd be working overtime to remedy the problem," Benedict said. "But it was found in surface water in very small amounts."
Although he's not a doctor, nor is he qualified to determine who would or would not be affected by the Simazine, he added, he has trouble tying that trace level of pesticide to the extreme physical reactions described by George Trickett.
Hometown Reaction
Over the past eight years, the Tricketts have not been shy about seeking h elp in their fight against the Ochses. Repeated contact with the Orwell selectboard has left them disillusioned and without recourse.
"We didn't start off going to court. We approached the selectboard on many occasions. The town has screwed us in every way they could," George Trickett said.
Speaking on behalf of the town, selectboard chairman Ted Simmons said the town always responded to the Tricketts to the full extent of the law.
"We've taken action when and where we've been able to. We sent out the dog warden, for example. But we act only on issues that are within our jurisdiction," Simmons said. "We can't solve this for them."
Mark Young, president of the National Bank of Orwell, is puzzled by the years of controversy. On one hand, he said that no other neighbors have complained about practices at Crescent Orchard. On the other hand, before the Tricketts bought their house, he informed them that other potential buyers had turned down the property because it was directly across the road from an apple packing facility.
In their quest for justice, the Tricketts have managed to attract the attention of legislators on the state level, but Sens. Tom Bahre and Gerry Gossens, Reps. Betty Nuovo and Patty Smith and even State Auditor Elizabeth Ready have all bowed out of involvement in the case. In Graves' opinion, they've thrown up their hands in disgust.
Agricultural Implications
"The Tricketts are not anti-farming. They want the enforcement of rules that are already on the books," said Janet Currie, a freelance paralegal who has voluntarily coordinated legal research efforts on behalf of the Tricketts.
At the heart of this case is the simple question: Does Vermont's right to farm give farmers immunity from certain other laws, and if so, does this practice inevitably supercede the rights of other citizens?
The Ochses say they are doing what apple farmers have always done: spending seven to 10 weeks per year harvesting their crop and then packing and shipping from November through January.
"We are conducting business in a way that is standard to multi-generational orchards. Nothing is out of the ordinary. It's what I grew up doing," Ochs said.
But the Tricketts understand that challenging Vermont's Right to Farm Law is a multi-layered process. According to them, before the right to farm can be upheld in theory or in a court of law, the concept of "acceptable agricultural practices" (AAP) needs to be examined.
AAPs are defined by the state as: agricultural activities conducted on farmland, if consistent with good agricultural practices and established prior to surrounding non-agricultural activities, shall be entitled to a rebuttable presumption that the activity does not constitute a nuisance. If the agricultural activity is conducted in conformity with federal, state and local laws and regulations, it is presumed to be good agricultural practice not adversely affecting the public health and safety. Showing that the activity has a substantial adverse effect on the public health and safety may rebut the presumption.
"It appears that the legislature should have taken the time to fundamentally break down the statute and attempt to define the terms listed in a more 'legal definition,'" Currie said, believing that this vague legal language unduly protects farmers who might otherwise be susceptible to nuisance cases, such as the one the Tricketts have brought against the Ochses.
But many in Montpelier disagree. Commissioner Graves is firm in his belief that the AAPs are adequate and clearly define what farmers can and can't do.
Rep. Mark Young, R-Orwell, has voiced concerns over further burdening agricultural businesses in the state.
"If we keep tweaking the AAPs, agriculture will become over-regulated. With every change we would potentially make, we'd slowly ebb away at a farmer's ability to farm. We want and need agriculture in Vermont. As state policy makers, we acknowledge this by doing things like encouraging current use practices and the establishment of land trusts," Young said.
Rep. Don Davis, R-Cavendish, is worried, too. "Laws have to be affordable, practical and able to be complied with. Over-regulating agricultural practices to satisfy environmental concerns, for example, could potentially put farmers out of business, which means our food becomes more expensive, if there's any to be had," he said.
The Davis Bill
Davis cites cases like Tricketts v. Ochs as the main reason he drafted H.620, a bill that would compensate farmers for legal fees if they prevailed in a lawsuit claiming their agricultural practices are a nuisance to neighbors.
The Tricketts feel this bill would only further protect farmers like the Ochses who enjoy special privileges under the right to farm law. But according to Davis, "The bill wouldn't help any farmer who isn't following acceptable agricultural practices."
In Vermont, agriculture is the business likely to fall prey to nuisance lawsuits, Davis said, and this bill is a way to prevent them from becoming commonplace.
The Legalities
Since the Davis Bill is currently before the Legislature, it would not apply to the Crescent Orchard case that is already in litigation. Even so, the case is being closely watched by high level agricultural officials and law makers.
The DOA's position is clear. The agency hopes that the Supreme Court will uphold the lower court's ruling that this is not a nuisance case. According to DOA, Crescent Orchard is an agricultural entity in compliance with AAPs; therefore, it is not a nuisance.
A precedent-setting decision could be reached that would dramatically affect the future of farming in Vermont.
"As suburbia creeps out into farmland, farmers are being harassed," Davis said.
"The potential impact on Vermont agriculture is huge," Young said. "People are building and buying homes near farms, and they're suing the farmers, even though the farms were there first. As a seventh-generation Vermonter, I'm not terribly sympathetic."
The Tricketts have relied upon an English Common Law principle to support their position that the Ochses have infringed upon their right to enjoy their own property.
But other commonly accepted legal tenets are also at work, namely, the fact that Crescent Orchard pre-dates the Tricketts' ownership of their home.
Those who disagree with the Tricketts' point of view are adamant about the concept of "pre-existence."
"The orchard was there, doing business, and ought to be allowed to do so. I have a hard time with new people on the block coming along and impacting a farm that was clearly there when they purchased the property," Sen. Bahre said.
According to Assistant Attorney General Michael Duane, the case will ultimately hinge on whether the Tricketts can adequately establish that Crescent Orchard constitutes a nuisance as defined by the state statute; something that unreasonably interferes with the use and enjoyment of their property. Addison County Superior Court didn't think so.
"The trial court was correct in finding that the Tricketts did not have substantial evidence to bring a nuisance suit against the Ochses," Duane said.
Because the Tricketts are suing farmers, they are subject to a higher burden of proof. When the Vermont Legislature passed the Right to Farm Law, it became necessary for plaintiffs to show substantial and adverse effects on public health and safety to win a nuisance case.
The Vermont Supreme Court has never before ruled on a right to farm case, so Duane has filed a "friend of the court" brief on behalf of the state, in an attempt to clarify certain pertinent issues that may be unfamiliar to the Supreme Court. Duane said he feels that the state has a definite interest in voicing its opinion in regard to this case and the Right to Farm Law.
In the End
The Supreme Court will begin hearing oral arguments in April. There is no indication as to when there will be a final ruling. In the meantime, the Tricketts and the Ochs stand firm.
The homeowners would ideally like the farmers to shut down, but said they would settle for their moving the packing house and equipment storage away from the roadside. However, they don't trust that any compromises would be honored.
People have suggested they move, but the Tricketts claim their property is virtually worthless, unable to be sold because of what the Ochses have done.
The farmers want to be left alone to do as they've done for decades -- grow apples.
As said by a defiant Peter Ochs, "[Farming] is not a part of my life I'd throw away lightly."