Appeals court upholds ruling on pesticide drift
By Pat Sunderland
Published Thursday, February 16, 2017 9:33 am
The Colorado Court of Appeals has upheld the conviction of a Hotchkiss area rancher who drew objections from his neighbors when his pesticides drifted onto their property.
James Hopper was found in violation of a contempt order, sentenced to two days in jail and ordered to pay a fine of $7,500. The appeals court affirmed that ruling.
Rosemary Bilchak, listed as a plaintiff with Gordon MacAlpine, called the decision "a win for private property rights."
"We're very grateful that after a thorough review of the facts, the Court of Appeals upheld the District Court judgment against Mr. Hopper," she said. "The United States is a nation of laws and there is a long and rich history of protecting the private property rights of citizens. Like every American, we pay property taxes on every acre of our farm and we want free and full access to our entire property. There is a growing body of evidence of negative health impacts from many sprayed toxins. It is our choice -- and our right -- to protect our property and our family from unwanted chemical trespass. We're very glad the Court of Appeals agreed with lower the court ruling and upheld our property rights."
According to court documents, the underlying dispute between the parties was over Hopper's application of pesticide on his property to control mosquitoes. MacAlpine and Bilchak asserted his application of pesticide invaded their property, exposed them to harmful health consequences and threatened their organic farming operation.
In 2012, after two years of litigation, the trial court issued a permanent injunction that, among other things, prohibited Hopper from applying pesticide within 150 feet of the MacAlpine-Bilchak property and required he become a licensed pesticide applicator.
On Tuesday, James and Georgia Hopper said they understood and complied with all the conditions. "We thought this would be over, but no ... they have taken us to court several times."
Two years after the injunction was entered, MacAlpine and Bilchak initiated a contempt action alleging five separate instances where they claimed Hopper violated the terms of the permanent injunction. The court agreed. At a July 2012 hearing, the court determined that Hopper's conduct was offensive to the authority of the court and, as a punitive contempt sanction, sentenced Hopper to two days in jail and to pay a $7,500 fine to the court.
Hopper asserted that he used reasonable efforts to comply with the injunction. The court agreed ... for the most part. But the court also found at least one incident when Hopper clearly did not comply with the 150-foot setback that delineated where he was allowed to apply pesticides.
The Hoppers believe their records prove otherwise, but the judge sided with the plaintiffs.
Mosquito control is extremely important to the Hoppers, they say, because Georgia nearly died from West Nile Virus about 10 years ago.
"We have known about Gordon's leukemia and have always been concerned for him," Georgia said. But, to them, the court appears to have little concern for the health of the Hoppers, their kids and their families.