This summer, the Minnesota Court of Appeals announced that a cooperative’s alleged over-spraying of pesticide could allow an organic farm to bring a trespass action to recover damages caused by the over-spraying. Specifically, the Court of Appeals’ decision in Johnson v. Paynesville Farmers Union Cooperative Oil Company stated: "We hold that pesticide drifting from one farm to another may in some circumstances constitute a trespass."FN1
The Court of Appeals began by recognizing that to show a trespass, a person must "prove two elements:  the plaintiff’s rightful possession and  the defendant’s unlawful entry." There was no dispute that the organic farmers had rightful possession of the affected land—organic farm fields. And so the Court of Appeals considered whether the alleged over-spraying by the cooperative, resulting in unwanted pesticides drifting onto the Johnson’s organic farm, was an unlawful entry or not; and decided that it was.
In confirming the organic farm’s right to be free of unwanted pesticide over-spray, the Court of Appeals overturned the trial court’s decision that the organic farm could not bring a trespass claim. The trial court had relied on an earlier Minnesota Court of Appeals decision that "invasive odors" from a pig farm "could not be a trespass because the odors were part of transient fumes…." The Court of Appeals realized that pesticide over-spray affecting an organic farm is fundamentally different than a mere smell, noting: "And while wafting odors will not affect the composition of the land, a liquid chemical pesticide or herbicide being sprayed for agricultural purposes will; by design, it descends and clings to soil or plants, killing organisms."
The Court of Appeals also considered two components of the federal organic-certification regulation scheme. First, the National Organic Program (NOP) requires that an organic farm must be "pesticide-free" for three years. The Court held that "drift" such as occurred in this case constituted an "application" which would disqualify the field from meeting this standard, causing the organic farm damage. Second, the NOP bars the sale of products as organically produced where residue testing detects prohibited substances (e.g. pesticides) at levels higher than five percent. The cooperative attempted to use this testing standard to argue that the organic farm had suffered no damage from the over-spray, claiming that the organic farm had not shown that the five percent tolerance was exceeded. The Court of Appeals rejected that argument, and announced that "the federal regulation that prohibits the sale of produce labeled organic if it is tainted with chemicals at levels greater than five percent of the EPA’s specified limit does not, by reverse implications, automatically authorize the sale of organically labeled produce that does not fail that five percent test." In other words, a product is not "automatically cleared for sale as organic" merely because a level of prohibited substances less than five percent is detected. So, the Court of Appeals determined that the trial court erred in concluding that a test level below five percent meant that the organic farm could not prove damages.
The Johnson decision appears to be a watershed case for the growing organic farming industry, and places a new tool in the hands of Minnesota farmers to protect their property rights.