In an August 2012 decision, the Minnesota Supreme Court held that particulate matter, including pesticides that drift onto organic farms, cannot form the basis of a trespass claim. Johnson v. Paynesville Farmers Union Coop. Oil Co., No. A10-1596, A10-2135 (Minn. Aug. 1, 2012). The Court also held that 7 C.F.R. § 205.202(b), a regulation governing certification of organic crops, does not apply when pesticide contamination is the result of drift, and not intentional application by the organic farmer. While this decision marks a return to traditional trespass jurisprudence, it also forecasts changes in how the Minnesota Department of Agriculture (“MDA”) will enforce certification of organic farms.
Johnson v. Paynesville Farmers Union Cooperative Oil Co.
Johnson v. Paynesville arose when Paynesville Farmers Cooperative Oil Company (“Paynesville”) repeatedly applied pesticides to crops adjacent to fields that Oluf and Debra Johnson were in the process of certifying as organic. As a result of Paynesville’s oversprays, the Johnsons brought claims that included trespass, nuisance, and negligence per se, alleging that: (1) the MDA detected pesticide residue and consequently required the Johnsons to take fields out of rotation for a period of three years and plow over other affected crops; (2) the Johnsons were forced to take extra weed-controlling measures because low level pesticide application resulted in increased weed growth; (3) responding to the pesticide drift necessitated additional record keeping; and (4) Oluf Johnson suffered certain physical ailments as a result of the pesticides.
After the district court dismissed each of these claims, the Johnsons appealed to the Minnesota Court of Appeals, which reversed the district court, holding that the trespass, nuisance, and negligence per se claims were sufficient to withstand a motion for summary judgment. The Court of Appeal’s decision marked the first time a Minnesota court held that movement of particulate matter could constitute a trespass.
Particulate Matter: Trespass or Nuisance?
The Minnesota Supreme Court reversed the Court of Appeals in returning to the narrower, more traditional understanding of trespass. The Court of Appeals focused on the way pesticides affect the composition of land in reaching its conclusion that particulate matter could ground a trespass claim. In rejecting this reasoning, the Supreme Court noted the importance of retaining the distinction between trespass and nuisance, while upholding Minnesota’s longstanding definition of trespass, which requires neither proof of damages nor proof that a trespass was foreseeable.
The key difference between trespass and nuisance is that while a trespass interferes with the plaintiff’s right to possession, a nuisance interferes with the plaintiff’s use and enjoyment of the land. Id. at 20. Thus, because the pesticides that drifted onto the Johnsons’ land “prevented them from using their land as an organic farm,” and not from possessing their land, Paynesville could not be liable for trespass. Id.
The Supreme Court also noted that two cases forming the foundation of the Court of Appeals holding, the Alabama case Borland v. Sanders Lead Co. and the Washington case Bradley v. American Smelting & Refining Co., each included requirements that trespass by intangible particulate matter be foreseeable and cause substantial damage. Id. at 15–17 (citing Borland, 369 So.2d 523 (Ala. 1979) and Bradley, 709 P.2d 782 (Wash. 1985)). Such limitations were necessary because “the ambient environment always contains particulate matter from many sources” and so expansion of trespass to include trespass by particulate matter could “subject countless persons and entities to automatic liability for trespass” without imposition of limitations on the traditional definition of trespass. Id. at 16 (quoting John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008)). As a result, for Minnesota to allow trespass by particulate matter without drastically increasing litigation, similar foreseeability and damages requirements—which have never before been components of trespass in Minnesota—would need to be introduced. Id. These reasons, paired with the availability of other remedies such as nuisance, led the Court to decline to extend trespass to include trespass by particulate matter.
Whose Actions Are Regulated Under National Organic Program Regulations?
The Court also reversed the Court of Appeals’ decision in regard to the Johnsons’ nuisance and negligence claims relating to the National Organic Program (NOP) regulations. The Court of Appeals held that the Johnsons suffered damages when the pesticide contamination caused their affected crops to fall out of compliance with organic certification requirements, forcing them to sell the crops as conventional and delaying completion of the certification process. The Supreme Court, however, interpreted the certification requirements differently, and held that the Johnsons could not prove damages related to NOP regulations.
Under NOP regulations, crops may only be labeled or sold as organic if no prohibited substances such as pesticides have been “applied to” the field in the three preceding years. 7 C.F.R. § 205.202(b). The Court of Appeals interpreted “applied to” to include pesticide drift and therefore held that the MDA had the discretion to decertify the Johnsons’ fields after the pesticide drift incidents, thereby resulting in damages. Id. at 24. The Supreme Court, however, held that the use of “applied to” in section 205.202(b), which does not specifically use the term drift, implicates only the producer of the organic crops and is inapplicable to situations of pesticide drift . Id. at 26–28. Thus, when the Johnsons took their affected fields out of rotation and marketed the crops as conventional, the resultant damages were caused by the MDA’s faulty interpretation of NOP regulations, not by Paynesville’s pesticide overspray. Id. at 33. Therefore, Paynesville could not be held liable for these damages under nuisance and negligence per se theories. However, the Court did provide the Johnsons with limited redress by allowing the Johnsons to maintain their nuisance and negligence per se claims relating to their efforts to combat increased weed growth, the additional recordkeeping necessitated by the pesticide overspray, and the alleged physical ailments of Oluf Johnson. Id. at 34–35.
The Minnesota Supreme Court’s ruling in Johnson v. Paynesville clarifies both NOP compliance requirements and the potential tort liability of conventional farmers, as well as other industries such as factories and power plants that emit particulate matter. It is unlikely that Minnesota will recognize trespass by particulate matter in the foreseeable future, and accordingly, industries that emit particulate matter should be most concerned with whether their emissions will cause damage to nearby property owners significant enough so as to subject them to nuisance or negligence liability. Moreover, organic farmers are less likely to have products decertified because of intermittent pesticide drift onto their crops. The Court’s ruling makes clear that such drift does not constitute a breach of NOP compliance and only applications by the farmer prevents labeling and selling products as organic. For consumers of organic products, this interpretation of NOP regulations means that organic products might contain trace amounts of pesticides. This decision represents the latest balancing of interests among conventional farmers, organic producers, and consumers of organic products by the Minnesota Supreme Court