Minnesota farmers caught a break when the Minnesota Supreme Court refused to recognize a claim for trespass by particulate matter on August 1, 2012. The Court also interpreted National Organic Program regulations regarding application of prohibited substances to organic fields as limited to an intentional application by the organic producer, rather than an unintentional application by pesticide drift.

What Was at Stake

In Johnson v. Paynesville Farmers Union Cooperative Oil Co., an organic farmer sued a member-owned farm products and services cooperative on claims including trespass, nuisance, and negligence after pesticide sprayed on conventional farm fields drifted onto the farmer's organic fields. In asking the Court to recognize a claim of trespass by particulate (or intangible) matter, the plaintiff sought to have Minnesota follow the lead of the Alabama and Washington Supreme Courts and depart from the traditional understanding of trespass. The plaintiff also argued that regulations implementing the Organic Foods Production Act required him to take fields exposed to unintentional pesticide drift out of organic production for three years.1 Establishing a common law claim of trespass for particulate matter was widely expected to spur litigation between organic and conventional farmers.

The Ruling

The Minnesota Court of Appeals had reversed the District Court, holding that the phrase "applied to" in 7 C.F.R. § 205.202(b) includes unintentional pesticide drift, and that unintentional pesticide drift can constitute a trespass. By a 6-1 margin, the Minnesota Supreme Court held that Minnesota does not recognize a claim of trespass by particulate (or intangible) matter, finding that the injuries complained of by the farmer could already be redressed by existing nuisance and negligence law. The Court also interpreted the phrase "applied to it" in 7 C.F.R. § 205.202(b) to mean applications of prohibited substances by the organic producer. Recognizing that the National Organic Program regulations are process-based, the Court concluded that 7 C.F.R. § 205.202(b) was intended to regulate the behavior of the organic producer, not unintentional pesticide drift from neighboring conventional farming operations. In doing so, the Court closely tracked the arguments in an amicus brief submitted by Stoel Rives on behalf of Minnesota Grain and Feed Association, Minnesota Statewide Cooperative Managers Association, and Cooperative Network.2

The Effect on Farmers

Organic and conventional farmers can both take positives from this decision. As we know, conventional and organic farming practices must co-exist with one another, sometimes even within the same farming operation. The bright line rule laid out by the Minnesota Supreme Court should help reduce legal disputes between conventional and organic farmers, while also making it possible for organic farmers who follow approved organic farming processes to obtain organic certification.