My very strange pears

Great advice. I am pretty fortunate in that we have an incredible City Attorney and he and I have become friends and he’s willing and able to advise me on every step of the way-so I have and will continue to seek his advice moving forward. I’m certainly not an attorney, but after being involved in many, many lawsuits over the years as part of my job, I have learned many of the things you both mention. For example, I will likely do almost all communicating via letter so there is clear evidence of what was said and he has no ability to claim I did or said something I didn’t.

My plans were that when I give him my list I am going to include everything- the number of completely dead trees and plants, the number that are severely damaged and likely to die, but I’m also going to list every damaged tree. I am also going to come up with some numbers for things like hours spent per tree, cost of additives used on each tree per year x years of trees life, loss of fruit, labor to replant trees, and every other conceivable cost. I am doing that for 2 reasons. One is that if I do let him off by just replacing dead trees, I want him to know and understand the totality of time and money that this really cost me. Two, I want him to be very much aware of how generous and reasonable I am being by accepting only a portion of the damage he actually caused.

Hoosierquilt, I promise you and Olpea that I will be notifying the EPA. I have used the Burke Quote myself, and it was your giving it above that convinced me I just can’t let this go, especially knowing he’s done it before and almost certainly will do it again. I found out whose grapes he killed last year and plan to call them just to hear the details of that situation.
Thanks

Cityman, I am sure you probably have already vetted this with the city attorney, but I would make sure there is no conflict of interest with the city attorney advising you (i.e., his boss is not the Mayor). He should be first to tell you this, so I am assuming that he feels no conflict of interest in continuing to advise you, and that is very nice of him to do, friend to friend. Please keep us posted. I feel so badly for you, it is rather heartbreaking to see your lovely trees die one at a time.

Patty S.

Another great point. And if it were to go to court he already said he wouldn’t want to represent me for just that reason. But in terms of just general advice, I’m very comfortable relying on him. He and I have become close friends and trust him implicitly. He also has a renown reputation as an attorney and has proven his knowledge and skills in countless litigations he’s handled for us in the past. Also, with a City Manager type government, the Mayor is little more than just a figurehead who runs council meetings. He rarely even comes to City Hall and never actually deals with day to day operations like contacting the City Attorney for any purpose. They barely know each other. Again, that doesn’t mean there wouldn’t be a professional/legal conflict- there is. He wouldn’t represent me or him in a case involving each other, so your advice is sound and appreciated. But I’d rather have his advice than any other attorney. Of course, it being free doesn’t hurt! ha. But you are pointing out just one of many reasons that this whole situation is much more complicated due to the professional relationship I have with the farmer who sprayed my orchard!

City
You’re a good man. Thanks for sharing your grief and rightful anger. We are solidly behind you. Don’t forget the asparagus, another plant that may not show damage till the spring. Before you replant, make sure you apply activated carbon to absorb the herbicides also part of your damages. Go get him!

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Cityman,

I would concur with the approach you are taking in seeking legal council. Though it’s obvious you are highly intelligent, and wouldn’t have risen to your current position otherwise, even very intelligent and experienced people need council when their emotions are involved.

For example, you mentioned the possibility of writing elected officials and the media. I strongly suspect an attorney would advise against that, if you intend to seek legal action. Anything you say in public may be used against you in court. Perhaps they might even file a libel/slander suit against you. Counter suits are very common in civil cases. If you are careful in your actions, the mayor won’t have any grounds for a counter suit.

If you do take him to court, I’d be surprised if the media didn’t pick it up anyway. That the Mayor is being sued for misuse of pesticides which caused property damage to the City Manager has enough drama to make the front page by itself.

Even experienced lawyers rarely represent themselves in court because it’s difficult to think clearly when emotions are involved. As they say, “The man who represents himself (in court) has a fool for a client.”

More words of wisdom and all are valid and worthy of consideration. I just hope everyone remembers that in spite of all that has happened, it is far and away not my desire or even intention to sue anyone. I just said that if he absolutely refuses to do even the minimal I’m asking in terms of making me whole, that I have decided I’ll do whatever I can-up to and including litigation.

By the way…you’re right about counter suits being common. Very often when we do condemnation cases or code enforcement cases that go to court they end up countersuing for something. The one thing, though, that I don’t worry too much about is the libel/slander, even though they are extremely common. That’s because the mantra of every City Attorney I’ve ever worked with is the simple but accurate sentence they love to repeat “The ultimate unfailing defense against libel/slander is truth”. In other words, as long as what you write or say is TRUE, there is no liability in stating it. SO that’s the one countersuit I won’t worry about !!! But I hear what you’re saying and certainly will proceed with caution.

Olpea, I would really love to hear your input on my other, related thread in which I’m asking that if indeed I am given the option to replace mature trees with mature trees, SHOULD I? I’ve seen several arguments (besides cost, which wouldn’t be a factor in my case if he or his insurance steps up) against planting mature trees…what do you think? thanks.

just burn his house down with him in it already…just joking. Bill makes a good point. Knowing you (through your correspondence here), I’m afraid your generosity and willingness to “be a good guy” could get you into trouble. Don’t try to hose the guy, just be honest and try to get fairly compensated. I agree with your logic though…if he is evasive, then drive it home for all you can get. Give him every opportunity to be the guy the city elected first (as you’ve said), the important thing is that you get compensated, he learns a valuable lesson and the reckless spraying is discontinued. It’s hay for crying out loud…it matters less than your fruit and health.
I personally wouldn’t go the “I’ll take this amount or else you’ll likely be paying a lot more” route. Just offer a settlement price (honest and fair price) and if he stalls then move forward with a suit (assuming the lawyer agrees of course).
Don’t attempt to talk to him with witnesses, that just complicates things and they would have to be disinterested witnesses anyway. I think you are doing everything right based on what little I know. You shouldn’t have went to talk to him though…that was a bad move, but I might have done the same.

Look at all this as a chance to start over. Everybody here would do things differently in their orchards if they had it to do all over again. You ARE going to get that opportunity. You likely WILL win some sort of settlement, though you will not be fairly compensated in court. The law does not care about your dreams etc. I suspect you may be awarded about 3-10k. That’s just a wild guesstimate. Removal of the dead trees should be paid for by him.
Good luck my friend…this is almost as good as AMC’s TURN series.

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Cityman,

Thought you might be interested in this article by MSU emailed today. Although pretty much nobody uses the ester form of 2-4D anymore, I thought the article still had some interesting insights.

interesting

Fascinating and very applicable article. When things have settled down I’m going to give a copy of this to the guy who sprayed me AND other nearby property owners. I wish they and TN would take it as serious as Michigan seems to!
But just so everyone knows, I’m gaining respect for the state of TN Department of Agriculture.
Yesterday, with no prompting to me, they returned to the property and 2 people were collecting a bunch of new samples. Better yet, they track down 6 (SIX!) nearby property owners and went and interviewed them, collected statements, etc. They also went to the farm of the Farmer who is responsible, and interviewed all his employees. One of them told me that the state guys actually took samples from several containers of spray as well as some of the mix tanks and spray tanks. They said they were going to be checking the concentration of all their sprays to see if they were mixing them at the correct strength indicated on the labels. They took affidavits from the sprayer and his boss regarding who told them to spray, whether they were told to do it on particular day, and several other questions. They not only inspected, but SIEZED the spray records for this year and all of last year. They told them that a fine was almost a certainty, though it could be probated if its a first offense. They are definitely doing a lot of work and seem to be taking it more seriously than I expected. Whether its all talk or not remains to be seen, but even if they don’t take any action, I’m very glad for all the effort because if nothing else, the farmer (and his 2 brothers who are partners) all know this is very big deal. That’s got to be a good thing.

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Yea, great to hear that! I’m sure he’s not that happy about now :laughing:

You reap what you sow! Karma is a bitch!

“Do what you want, do what you will, just don’t mess up your neighbor’s thrill” - Frank Zappa

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Does anyone have any fairly recent estimates of the costs of getting a fruit tree to age 4-5 years? I’m thinking there must be some studies or estimates out there for all the costs- including tree and inputs and labor. But with a couple exceptions, the only thing I’ve found is estimates for big commercial farms and they are usually done in acres and not trees. Surely there are some good numbers on how many hours it takes per year, what the cost of sprays and fertilize is per tree, and so on. In other words, in a strictly monetary sense, I’m looking for a reliable source I can quote (not just your own estimates, though they’d probably be more accurate!). I have one really good one, but it has a few problems and I’d love to have more and/or better ones.

For those who are interested, here is a link to the one I found. I think its pretty neat and I bet you all will too. Ever wonder how much that 5 year old apple tree in your yard really cost you including everything? Here is what Oregon State thinks:

I’d love to be able to find something similar to that one, but it is just full of countless statements that are just plain wrong. Statements like (paraphrasing) “almost all spraying is done during dormancy” and “You should do very little pruning the first 3 years” and “spray in the winter is to protect flower buds” and many other statements make this whole document questionable, along with the fact that it is 9 years old. So if you know anything similar but newer and more accurate, I’d love to see it. And others might enjoy seeing a more accurate estimate off all input costs of producing home grown fruit over the first 4-5 years. THanks

As I said earlier, an arborist can appraise trees. When considering worth one must factor state, city, type of tree, cost of products needed in your area, etc. So any prices in say PA are not going to tell you the worth in TN. One thing you could do is quote prices from local nurseries for the same size.
One nursery here does sell 5 year old trees. Plus labor costs also. An arborist could do that easy.
http://www.isa-arbor.com/findanarborist/arboristsearch.aspx?utm_source=homepageclicks&utm_medium=homepagebox&utm_campaign=IAmA

I’m looking for all input costs, not just value of tree itself…just like the Oregon state thing on the link. I thought those calculations were pretty interesting. And you are right- there will be substantial differences between locations, but they will still give me some general basis on which I can base an argument. THanks for arbor
ist links!

City,
I did that accounting thing years ago for keeping five hives of bees. The cost is amazingly very close to the same as trees. That seems to be accurate for spray, trees and labor time but the labor rate should be what the city pays you per hour in your job. Don’t forget the activated charcoal, it will neutralize any soil contamination.

A question: in the second series of photos I tried to take a close look at the weeds at the base of your trees. Have they curled and died or are they still alive? If alive, when they sprayed, the wind had to been howlin’ across your property. Ester 2,4-D is an old form of 2,4-D used mostly as a brush killer because of its’ high activity on trees and its’ very low cost. Also extremely mobile as you know.

Keep on with the good fight, eat some more asparagus :smile:

If you have the heart to start over with some trees, I’d send you scions, and I’m sure I’m not the only one!!

@Chikn - Thanks for tip on the charcoal…definitely going to look into that. I also will be picking your brain one of these days about bee hives. I’ve been considering adding that too my list of projects. BTW…a stray dog killed my 2 best (free range) chickens this morning (one of which had eight, 2 day old chicks that I now have to care for)…dang, I just can’t win! ha To answer your Q, the weeds at the base of my tree and all across my property are definitely curled and dying but I wouldn’t say dead. Dandelions and other broadleaf plants all have that curled, sickly look. My whole 7.5 acre property looks like I sprayed 2, 4-d on all my grass. SO hey…for the price of a few thousand dollars worth of trees and plants I did get a free 2-4-d treatment for my yard! ha. Fewer dandelions is a very small consolation prize! Oh…while putting together a spread sheet of my losses/expenses, I did just what you suggested, and put my own salary (converted to an hourly rate) figure in as labor costs. Unfortunately, my attorney-friend tells me that won’t fly. He says I can base it on the cost a reasonable nursery would charge to install a tree, do spraying, etc, which can be substantially above just an unskilled labor rate, but I can’t use my own pay rate. When I challenged him on this what he said really made sense, which is that if 2 people had their trees killed and one was a brain surgeon and one was a cashier at Wal-mart, a judge wouldn’t say the cashier worker’s trees are worth less money. The lawyer says that while the opportunity cost (the cost of planting/spraying a tree instead of performing surger or working an hour an walmart) is much higher for the surgeon, it is his choice (theoretically) to work on trees instead of brains or instead of hiring someone to plant the trees and he cannot therefore claim that the total value his trees are any more valuable than the cashiers trees. The courts, he says, would establish a standard value for tree-related labor and it wouldn’t change based on how much money the owner makes when he does something else. I am being so detailed here because I had the same opinion you did and my lawyer friend and I spent several minutes talking this and I thought it was interesting and thought you and others following this might also be interested in this for whatever reason. He did say if my trees were my income source instead of a hobby it might change this argument a little, but I’m already made this discussion too long so I will stop here!
@Lizzy - Once again, your kindness is appreciated. I have indeed had similar offers from other folks here on Scott’s fruit growing forum- some on this thread and others via private messages. Its just been further confirmation that fruit growers- or at least those here- are among the most compassionate, generous, helpful people in the world. Maybe its something that comes from eating such good fruit ! ha. Thanks again. Of course, I have to actually establish some TREES or rootstocks before I can use any scion! :slight_smile: But when I do I might just take some of you up on the offers, and either way I’ll sure remember the fact that such offers were made. Thank-you.

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Hey @thecityman. I was thinking about herbicide damage and it got me to wondering how your orchard is doing? Did all of those effected trees end up dying or did they recover from the spray damage? Where are you at in your battle with the city/farmer? And can you share some pictures of what the trees currently look like?

Wishing you the best.

yeah…I too have been curious about this once gripping saga. Update?

Thanks so much for your interest in my situation. I really should have provided an update already, but I don’t have a lot of new information to tell. Lets start with the legal/financial related stuff. Much to my dismay, the State of TN HAS STILL NOT COMPLETED THEIR REPORT and TESTING! I’ve inquired a couple time, but the investigator always says she is still waiting for the lab results and is expecting them “soon”.
Meanwhile, just as many of you predicted, the farmer who did the spraying (well, one of his employee) has already done everything he possible can to try to distance himself and deny responsibility. For those who don’t remember, it turns out that the offending farmer is the Mayor of the town in which I work as City Manager- so to say the least its a very tricky situation. But in a million years I never would have imagined he would have behaved this way. We used to stop and talk anytime I saw him anywhere. Since the day I told him that his spray had killed a lot of my trees and plants- 2 months ago- I have talked to him a grand total of 2 times, and both of those times were right before mandatory City Council Meetings!!! On several occasions I’ve seen him jump in his truck and leave when I’ve slowed down or pulled into somewhere that he was. He has to cosign checks with me every week, and for the first time in 15 years he has started signing his name when I’m at lunch. So not only has he not offered to do anything to correct his mistake, but he is avoiding me like the plague. Worse yet, on the 2 times I did see him and speak to him (b4 council meetings) he used the opportunities to try and do damage control. Last time I saw him he asked if I got the report from the state yet. I said no and here is what he said…"well, you know, I’ve been thinking, and I will guarantee you that every single farmer who farms around you used 2, 4-D this spring so there is no telling who really got your stuff. I responded by saying “well, they all gave sworn statements to a state investigator saying that had NOT spraying any kind of herbicide by the time of my damage and the state took samples off all their land along with mine so they will know for sure if anyone else sprayed so I doubt they lied to the investigator”, He just grunted and changed the subject. Anyway, you all probably aren’t interested (or surprised) in the story of disappointing human behavior. So lets get to the part you may care about- what are the medium term (2 months) effects of 2, 4-D type sprays on fruit trees and plants.

Overall, I must say it is pretty good news so far, and also quite interesting I think. I have learned a lot from this, so if any of you have any 2, 4-D type exposure, feel free to write me and I’ll answer any questions I can based on my experience. One of the things I’ve learned is that certain kinds of trees are MUCH more susceptible to 2, 4-D type sprays. Cherry, pear, and apricots and most of all grapes are the most sensitive to damage and death. These trees all died or nearly died even though they were spread out all over my property. At the same time, other trees and plants were much more resistant and in many cases they showed very little affect, even though they were 3 times closer to the spray than others. And again, they were dispersed all over the property, so it is very unlikely that just a random gust of wind carried the spray closer or further from a given tree. There were no obstacles between sprayed field and all my trees, and my trees are spread fairly evenly over a 4 acre area, SO, for example, I had some apple trees that were 10 feet from the sprayed field which showed little damage, while I had some apricots and pears that were 500 feet away and were killed or severely damaged. In the end, it looks like I’m going to have 9 dead trees and 6 more that are so severely damaged that I may well just replace them rather than spend the next 5 years nursing it and worrying if it will ever be a good tree. But the good news is that many of the trees I was originally sure were dead or soon will be have ended up not only living, but some have started growing and putting on nice looking bright green growth.
Type of Damage
The 6 that I call “severely damaged” but not dead (yet) are almost all pear trees (and 1 plum, 1 cherry). They still look very much like they did a week after it happened and as they do in the photo at the top of this thread. They put on all that weird, spindly, spiral growth for about 2 weeks and then just stopped all growth. They haven’t died or even lost their leaves (well, maybe 10%), yet in the last 2 months- which has been PERFECT warm weather with plenty of good rainfall (tho not too much) and everything else is growing like crazy- but those 6 haven’t put out a single leave or stem in most cases, and when they have its been a thin, curly spring or two. Its as if they are just frozen in time! The grapes are similar, but have put on some growth. I was almost certain all my grapes had been killed, but they have been among the good news makers. Most of them ended up putting on some new growth, though a lot of that growth is strange looking. The leaves start off curled up and even though they slowly get bigger, they remain curled in on themselves. Also, none of the grapes have put on anywhere NEAR the normal amount of leaves or vines. In fact, they have been among the strangest behaving plant since being sprayed. While they made very few leaves (maybe 30% of normal amount), they did still form about the same- and maybe more- number of grape bunches. You can imagine how strange it looked to see all those little bunches without leaves covering them. But stranger still, even though the bunches formed and started off normally, once they “bloomed” (I guess you call it a bloom-whatever it is right before it becomes a tiny little grape) they would turn brown and die. the bunches had not formed at time of spraying, so to me its strange that they would still form bunches and “bloom” but then die instead of just not forming bunches to begin with. In spite of all this, I do have several bunches of grapes on my vines that formed, “bloomed”, birthed baby grapes, and now have good sized grapes that are just a few weeks from ripening. It still looks strange since most of these bunches exist without any (or many) leaves and multiple vines so I have grapes just hanging on bare vines in many cases. This may lead to those bunches of grapes being sunburned, but almost certainly will result in birds getting them all since they are just sticking out there unprotected.
I should also tell you another interesting fact when it comes to the damage. In several cases, the trees I’m saying are dead actually only died from the original graft point up. In several cases (5-6) the rootstock actually survived and came back in a big way. Now, you all completely understand why I am counting them as dead trees, because the top part that I purchased for its fruit bearing capacity and type are completely dead. But I suspect that the guy who killed them is seeing them and thinking they are going to be fine. Farmer or not, we’ve talked enough that its clear to me that he has absolutely no knowledge of fruit trees at all and certainly not that they are all grafted. ANd for you all, it is rather curious that so many tops would be killed but rootstocks would not just survive but thrive. In many cases the rootstocks had never sent up any growth at all, and now are just thick with bright green, healthy looking sprouts and growth. Its remarkable. One plum is interesting because the rootstock growth is a dark, very beautiful dark purple growth that looks like purple peach tree leaves. You all may know what rootstock looks like that, but I don’t. But I do know none of these rootstocks are probably worth keeping and that’s why I am counting them all as dead trees.
Well, that’s most of what I can think of that I feel you all would be interested to know. By all means if you have any questions feel free to let me know. Thanks again for your interest and moral support, and I’ll keep you posted on how things go, including what the state report says.

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