The Oklahoma Bar Journal February 2024

allegedly damaged crops or plants during reasonable hours. The representatives of the applicator may include, but not be limited to, crop consultants, bondsmen, and insurers. Nothing in this subparagraph shall limit in any way the harvesting or destruction of the allegedly damaged crops or plants in the ordinary course of business and practice. 2. Any person failing to comply with paragraph 1 of this sub section shall be barred from filing an action for damages against the applicator. Probably the best explanation of the purpose and effect of this statute was given by the Oklahoma Supreme Court in Olmstead v. Reedy. 8 Olmstead was a case involving alleged damages to plants and crops as a result of pesticides drift ing onto the plaintiff’s property after having been applied to an adjoining property. In that case, the Oklahoma Supreme Court stated, “The language of the statute (2 O.S. 3-82) seems clearly to provide that the filing of the written statement of damages is a condition prece dent to the right to commence the action.” 9 “The statute appears to us not to have been intended to terminate or limit the rights of one whose property is damaged by an applicator of pesticides but to prevent undue delay in reporting any alleged damages.” 10 “Another purpose of the statutory require ment apparently was to afford defendants an opportunity to investigate the circumstances while the claimed damages were fresh and prior to change and to pre serve evidence for their defense.”

by ODAFF through its Consumer Protection Services Division. The CPL sets forth several require ments that must be met for persons and entities to become certified applicators of pesticides in this state and the criteria by which the applicators and their applications of pesticides will be reviewed. In addition to the requirements imposed on the pesticide applica tors, the Legislature also included requirements in the CPL that must be met by those who claim to have been damaged by pesticide applica tors. Specifically, the CPL provides at 2 O.S. §3-82(D) 7 that: DAMAGES – 1. Prior to filing an action against an applicator for damages to growing crops or plants, any person alleging damages to growing crops or plants shall:

this directive clearly applies to corporations, but its application to other entity structures is not as clear. That said, violation of the farming or ranching requirements for any entity carries the possibility of a $500 fine and the possibility of misdemeanor charges. Ultimately, though, it is the citizens of this state who have been empowered to oversee the use of legal entities for farming and ranching. Both farming and ranching require the use of real estate, and Oklahoma uses a lot of real estate for those purposes. Assuming then that a farming or ranching entity requires real estate to operate, it is only logical that §956 was included to ensure compliance with the entity requirements. If an entity is in violation of the requirements of §956 and owns real estate, any resident of the county in which that real estate is held may file a district court action for the divestment of the real estate. With this in mind, if the decision is made to utilize entities in farming and ranching operations, those entities should be reviewed on a regular basis to ensure continued compliance with the farming and ranching entity requirements. Otherwise, this agri cultural law could make continued operations a little difficult. DAMAGES FROM PESTICIDE APPLICATIONS A common agricultural prac tice is the application of pesticides to crops and growing plants in order to protect them from insects, weeds and numerous other pests. The application of pesticides 6 in Oklahoma is governed by the Combined Pesticide Law (CPL), which is found under the Agricultural Code at 2 O.S. §3-81 et al. and is regulated and enforced

a. within ninety (90) calen dar days of the date that the alleged damages occurred or prior to the time that twenty-five percent (25%) of the allegedly damaged crops or plants are har vested, whichever occurs first, file a written com plaint statement with the Department regarding the alleged damages, and b. between the date of filing of the written complaint pursuant to subparagraph a of this paragraph and the date harvesting or destruc tion of the allegedly dam aged crops or plants occurs, allow the applicator and the representatives of the applicator reasonable access to the property to inspect and take samples of the

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

30 | FEBRUARY 2024

THE OKLAHOMA BAR JOURNAL