Leukemia vs. West Nile: Battle over pesticide spraying ends with jail sentence

© Chaiwat Subprasom
In a case that may come down to whose life is more important ‒ a leukemia patient or a woman who almost died of West Nile virus ‒ a Colorado rancher is heading to jail for spraying mosquito-killing pesticides that wafted onto his neighbor’s organic farm.

James Hopper, 81, is set to pay a $7,500 fine for spraying pesticides on his land, even though he had a permit to do so.

Mosquitoes are no small pest for Hopper, whose wife, Georgia Hopper, was diagnosed with West Nile virus in 2006. She was forced to spend six days in the hospital after her fever spiked over 106 degrees (41.1 C) from the mosquito-borne illness.

State-administered Paonia Mosquito Control District sprayers tried to eliminate the bloodsuckers for years, but moved away from pesticides in 2008, thanks to a campaign led by Hopper’s neighbor, Rosemary Bilchak.

Pesticides are no small poison for Bilchak, an organic vegetable grower whose husband, Gordon MacAlpine, suffers from leukemia. The couple began farming to be able to eat healthier pesticide-free food to support MacAlpine’s immune system.

"It's terrifying — as if you are under assault," Bilchak told the Denver Post. "We had to be vigilant all the time, listening for the sprayer. We would close the doors and windows. ... And it was a threat to our economic development. We've never been able to do what we wanted to do."

Instead of spraying, the district and area growers switched to using larvicides to kill mosquito eggs laid in stagnant water, the Denver Post reported. In response, Harper took a state exam to receive a state pesticide applicator’s license in 2011.

The neighbors applied for a certification of their own ‒ that of organic growers ‒ that could be jeopardized by pesticides, the couple argued during a request for a permanent injunction against Hopper’s spraying in 2012.

Indeed, the judge in the case, District Court Judge Charles R. Greenacre, noted (PDF): “Organic certification requires that no pesticides be used on the property, and the use of pesticides will result in withdrawal of organic certification for three years.”

MacAlpine also registered as a pesticide-sensitive person with the Colorado Department of Agriculture (CDA).

Greenacre ruled that, while the Hoppers have a right to protect themselves from West Nile virus, their neighbors have a right not to have their property invaded by his pesticides. He outlined where and when Hopper could spray.

Hopper continued spraying at least through August 2015, and ‒ on at least one occasion ‒ applied pesticides within 150 feet (45.7 m) of his neighbors’ property line, in violation of the permanent injunction.

So Bilchak and MacAlpine took Hopper to court again.

When State Judge Jeff Herron sentenced Hopper on February 12, he called the sprayer’s behavior "offensive to the authority and dignity of the Court." He added that he hoped the punishment of spending two days in jail for contempt of court and pay the $7,500 fine "would hopefully inspire Mr. Hopper not to violate the court order in the future."

Bilchak also hopes that the sentence will end the spraying.

"The fact that we had to prosecute him leaves a sour taste in my mouth," she said.

Hopper will report to the Delta County jail on Saturday, but not happily.

"This is such a bogus deal. ... It is really ridiculous," he told the Denver Post. "All I'm trying to do is protect us from the mosquitoes."

His lawyer has already filed an appeal, Hopper said, arguing that Herron abused his discretion with the sentence.