Written by Jennifer Singleton, a law clerk at Larkin Hoffman. She is currently a third year student at the University of Minnesota Law School
Minnesota’s organic farmers may now have greater protection against neighboring farmers’ pesticide use. The Minnesota Court of Appeals recently held that when chemical pesticides drift from one farm to another, the resulting damage may provide a basis for claims of trespass, nuisance and negligence. The decision reverses the lower court’s determinations that Minnesota does not recognize trespass by particulate matter and that the damages necessary to sustain causes of action for negligence and nuisance cannot exist unless pesticide contamination exceeds the five percent limit established by National Organic Program (NOP) regulations. With organic farming becoming increasingly widespread and profitable, this decision may have far-reaching implications for those involved in Minnesota’s agriculture industry.
Johnson v. Paynesville Farmers Union Coop. Oil Co.
In its July 2011 decision, the Minnesota Court of Appeals considered what remedies, if any, were available to organic famers whose crops were contaminated as a result of overspraying pesticides. Johnson v. Paynesville Farmers Union Coop. Oil Co., No. 73-CV-09-5042 (Minn. App. July 25, 2011). Upon deciding to transition to organic production, the plaintiffs, Oluf and Debra Johnson, asked the defendant, Paynesville Farmers Union Cooperative Oil Company (Paynesville), which engaged in the business of commercial pesticide spraying, to take precautions against overspraying when treating fields adjacent to the Johnson farm. Despite these requests, the Johnsons’ fields were damaged as a result of overspraying by Paynesville on five separate occasions over a ten year period.
After each of the latter four oversprays, the Johnsons contacted the Minnesota Department of Agriculture (MDA), which required the Johnsons to take the affected fields out of organic production for a period of three years. In addition, following the second overspray, the Johnsons were forced to sell affected crops at lower, non-organic prices, and after the third and fourth oversprays, the MDA required the Johnsons to burn or plow under the affected crops.
Following the final 2008 overspray, the Johnsons filed suit, alleging trespass, nuisance, negligence per se and battery. Though the district court initially granted a temporary injunction that prohibited Paynesville from spraying within a one-quarter mile radius of the Johnson farm and required Paynesville to provide advance notice of spraying activities in the area, the district court ultimately dismissed all of the Johnsons’ claims.
Particulate Drift and National Organic Program Regulations
The Court of Appeals reversed the district court’s dismissal of the trespass, nuisance and negligence per se claims. To prevail on a claim of trespass, a plaintiff must show that 1) he or she has rightful possession of the property, and 2) the defendant unlawfully entered that property. In a previous trespass case, the Court of Appeals had held that “invasive odors” emanating from a pig feeding lot could not constitute “unlawful entry” by the defendant. Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. App. 2003). The Wendinger court, referring to the fumes as “particulate matter,” found that though these fumes impaired the enjoyment and use of the property, they did not harm the plaintiff’s possessory rights. Id. Thus, the court in Wendinger held that nuisance, not trespass, was the appropriate cause of action. Id.
Relying on the Wendinger court’s use of the phrase “particulate matter,” the district court in Johnson decided that because the pesticides that drifted onto the Johnsons’ farm were also particulate matter, there could be no claim of trespass. The Court of Appeals determined, however, that the district court misapplied Wendinger, explaining that unlike fumes, the pesticides “affect[ed] the composition of the land” by clinging to soil and plants and killing organisms. In so holding, the court joined other jurisdictions, including Alaska and Washington, in determining that trespass can occur by way of particulate matter.
The Court of Appeals also disagreed with the district court’s nuisance and negligence per se analysis. The district court relied on its interpretation of the organic certification scheme created by NOP to determine that the Johnsons had not suffered any damages as a result of the pesticide drift. The federal regulations, adopted by Minnesota in Minn. Stat. § 31.925, state that “[a]ny field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic’ must . . . [h]ave had no prohibited substances . . . applied to it for a period of 3 years immediately preceding harvest of the crop.” 7 C.F.R. § 205.202(b). A separate provision states that if “residue testing detects prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency’s tolerance for the specific residue . . . , the agricultural product must not be sold, labeled, or represented as organically produced.” 7 C.F.R. § 205.671.
The district court relied on this second standard to determine that because the Johnsons submitted no evidence that their crops tested above the five percent tolerance level, they had suffered no damages, as they could have sold their crops at organic prices. The Court of Appeals disagreed with this conclusion, explaining that the five percent provision could not be read in isolation and that, ultimately, a certifying agent has the discretion to decertify crops even if they test below the five percent contamination threshold. Accordingly, the damages pleaded by the Johnsons were sufficient to survive a motion for summary judgment, allowing their claim to proceed to trial for resolution.
The Court of Appeals’ decision expands the remedies available to organic farmers who suffer damages as a result of pesticide drift. It correspondingly increases the risk faced by conventional farmers and commercial pesticide spraying companies applying chemical pesticides and herbicides in the vicinity of organic farms. Though pesticides may not be visible, they constitute physical “particulate matter” and have the ability to invade the possessory rights of landowners, thereby creating a cause of action for trespass. Further, any contamination may constitute “damage” for the purposes of nuisance or negligence per se claims if an organic certifying agent determines that affected crops do not met NOP regulatory standards. Conventional farmers and commercial pesticide spraying companies should take extra precautions when spraying near organic farms. Ultimately, with the ever-growing market for organic foods and resultant increase in the presence of organic farms, courts will continue grappling with the difficult task of balancing the interests of organic farmers with those of conventional farmers.