2007 ORS 634.172¹
Procedure for making liability claim against landowner or pesticide operator
  • investigation of report of loss
  • claim procedure not waiver of governmental immunity

(1) No action against a landowner, person for whom the pesticide was applied or pesticide operator arising out of the use or application of any pesticide shall be commenced unless, within 60 days from the occurrence of the loss, within 60 days from the date the loss is discovered, or, if the loss is alleged to have occurred out of damage to growing crops, before the time when 50 percent of the crop is harvested, the person commencing the action:

(a) Files a report of the alleged loss with the State Department of Agriculture;

(b) Mails or personally delivers to the landowner or pesticide operator who is allegedly responsible for the loss a true copy of the report provided for under paragraph (a) of this subsection; and

(c) Mails or personally delivers to the person for whom the pesticide was applied a true copy of the report required under paragraph (a) of this subsection if that person is not the person commencing the action.

(2) Any person who claims to have sustained any loss arising out of the use or application of any pesticide by any state agency, county or municipality may file a report of loss with the department, and mail or personally deliver a true copy of such report of loss to the state agency, county or municipality allegedly responsible, within the time provided in subsection (1) of this section.

(3) Upon receiving a report of loss as provided by this section:

(a) The department may investigate, examine and determine the extent and nature of the damage alleged to have been caused to property or crops. The department shall not determine the source of the damage, the person who may have caused the damage or the financial extent of the loss or damage. The department shall prepare and file in its office a report of the investigation, examination and determination. Copies of the report made by the department may be given upon request to persons who are financially interested in the matter.

(b) The department at the request of, and without cost to, any persons financially interested in the matter may undertake to mediate an equitable settlement of the controversy.

(4) Upon receiving a request therefor from any person, other than a person who may file a report of loss as provided by subsection (1) or (2) of this section, the department may investigate, examine and determine the extent and nature of damage alleged to have been caused to property or crops arising out of the use or application of any pesticide by any other person or any state agency, county or municipality, provided that the person making such request reimburses the department for its work. The department shall not determine the source of the damage, the person who may have caused the damage or the financial extent of the loss or damage. The department shall prepare and file in its office a report of the investigation, examination and determination. Copies of the report made by the department may be given upon request to persons who are financially interested in the matter.

(5) Nothing in this section shall be construed as a waiver by the State of Oregon or any state agency, county or municipality of any immunity against suit which otherwise may exist.

(6) Notwithstanding ORS 634.006 (Definitions) (7), as used in this section, "landowner" includes any person, firm, corporation, the state, any county within the state, or municipality, shown by records of the county to be the owner of land or having such land under contract for purchase. [1973 c.341 §23; 1991 c.351 §1; 1995 c.96 §2]

Notes of Decisions

Brief delay in notifying adjoining landowner of damage to crops allegedly resulting from adjoining landowner's spraying of pest­i­cides did not bar injured party from seeking recovery of damages from adjoining landowner. Bella v. Aurora Air, Inc., 279 Or 13, 566 P2d 489 (1977)

Spraying of pest­i­cide which was isopropyl ester of 2, 4-D constituted "abnormally dangerous" ac­tivity, and imposed liability for damage to nearby crops without proof of negligence. Bella v. Aurora Air, Inc., 279 Or 13, 566 P2d 489 (1977)

Provision of this sec­tion requiring notice of ac­tions against pest­i­cide operators within 60 days from date claimant discovered loss occurred was not constitu­tionally impermissible discrimina­tion against class of which claimant was member. Knight v. Reforesta­tion Services, Inc., 56 Or App 865, 643 P2d 880 (1982), Sup Ct review denied

Plaintiffs who notified Oregon State University extension service agent of damage from spraying did not substantially comply with require­ment to report loss to Depart­ment of Agriculture but ques­tion whether representa­tions of defendant's insurance adjuster estop defendant from challenging adequacy of notice presents genuine issue of ma­te­ri­al fact for jury to decide. Malaer v. Flying Lion, Inc., 65 Or App 154, 670 P2d 214 (1983)

Defendant public utility was not "pest­i­cide operator" under ORS 634.006 (Definitions) when applying pest­i­cides in maintaining its own facilities, and plaintiff's failure to comply with report of loss pro­ce­dures of this sec­tion did not bar plaintiff's claim. Vierra v. Clackamas County, 96 Or App 196, 772 P2d 1346 (1989), aff'd, 309 Or 243, 785 P2d 757 (1990)

Prohibi­tion against State Depart­ment of Agriculture making certain determina­tions in course of investiga­tion does not prevent introduc­tion of findings as evidence in civil ac­tion. Holbrook v. Precision Helicopters, Inc., 162 Or App 538, 986 P2d 646 (1999), Sup Ct review denied

Chapter 634

See also annota­tions under ORS chapter 573 in permanent edi­tion.

Atty. Gen. Opinions

County ac­tion to regulate pest­i­cides, (1980) Vol 41, p 21

1 Legislative Counsel Committee, CHAPTER 634—Pesticide Control, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­634.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 634, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­634ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.