AURORA, S.D. — The federal case on the use of the herbicide dicamba may be headed for the Supreme Court, but it’s a fight one South Dakota farmer says is warranted.

Specialty crop producer John Zuhlke operates Little Shire Farm near Aurora and is a plaintiff in the original lawsuit that was filed in 2017 in the Ninth Circuit Court. The lawsuit alleged that the Environmental Protection Agency violated both the federal Insecticide, Fungicide and Rodenticide Act as well as the Endangered Species Act when it first registered dicamba use on dicamba-tolerant crops in 2017.

The case led to the registration being vacated on several dicamba products in June. Zuhlke says he joined the lawsuit after suffering thousands of dollars of losses to his specialty crop from off-target dicamba drift.

“We’ve had significant damage over the past three, four years. Several, tens of thousands of dollars’ worth of damage and no recourse, very difficult to get the state to do anything about it,” he says.

Dicamba is a threat to his livelihood, and the produce on his farm shows visible signs of dicamba drift again this season.

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“So this stuff is drifting a half-mile, a mile and it’s out of control,” Zuhlke says.

Even when adjacent landowners didn’t apply dicamba, he says it drifted and damaged his produce.

“The most significant the first year was vegetables. It completely melted everything. The trees were absolutely completely damaged,” he says.

In fact, his black walnut trees are only producing about 10% of their normal crop, and his grapevines have nearly shut down.

His greenhouse also sits empty, as volatilization was worse with the higher heat inside. Zuhlke says that’s forced many specialty producers out of business.

“We’ve even seen ourselves cut back on the amount of produce that we are willing to grow, just knowing that the damage is going to occur,” he says.

He points out that there has been permanent damage to the environment and wildlife habitat, and the herbicide has drifted into town, causing damage to trees.

Zuhlke blames the companies that released the dicamba products and says they acted irresponsibly.

“They pushed this product on the farmer as fast as they possibly could with a lack of science,” he says.

Zuhlke also claims some of the companies disallowed the university tests that were conducted on the volatility of dicamba when applying to the EPA for registration.

However, the blame doesn’t stop there.

“Farmers themselves need to begin to think about the damage that they’re doing to other people, just not about their pocketbook,” Zuhlke says.

He understands the use of dicamba for an early burn down when it cannot harm other crops, but he says the research from land grant universities clearly documents the inversions that are common when the herbicide is sprayed later in the season.

“The science behind it does not justify even using it,” he says.

The first season of dicamba use, state departments of agriculture across the country received thousands of complaints.

“You know we’re seeing 500,000-plus acres here in South Dakota of crops damage, and that’s just what was reported and we know that is a much more significant number,” Zuhlke says.

As a result, many states tightened the restrictions to prevent off-target drift. These changes included cutoff dates for application. For example, in South Dakota the cutoff was the R1 soybean development stage, or June 30. There were also stricter guidelines on temperatures and wind speed conditions for application. Plus, farmers and applicators were also given more training on how to properly apply the products, and the industry developed special application nozzles.

Despite the tighter restrictions, Zuhlke says the damage is still occurring, and that’s why winning the federal lawsuit was so important.

“People need to start thinking about, you know, what is the next step when these things are banned, because they’re going to be because it just can’t continue like this with the amount of damage happening all across the Midwest,” he says.

In fact, he doesn’t think dicamba will be re-registered by EPA for the 2021 season, and if the agency does allow the products to be used, they will face additional legal action.