Minnesota Court ruling: pesticide drift may be considered trespassing

Date:08-02-2011

Federal regulations specify that "organic" crops, if tainted by herbicide, must be sold at lower, nonorganic prices and that the tainted field must be removed from organic production for three years.

To be labeled "organic" the federal organic certification regulations adopted by the National Organic Program (NOP) specify that pesticide levels may not exceed 5% of the EPA's tolerance for specific residue detected after chemical testing.

In this Minnesota case, pesticide drift onto organic crops led to problems between neighbors, and litigation involving a local co-op. The organic claimed that a local co-op sprayed chemical pesticides that drifted from targeted fields to theirs, thereby preventing the plaintiff from selling his organic crops under a federal non-pesticide "organic" certification.

The plaintiff began converting his conventional crop farming operation to a certified organic operation in the 1990's. At that time, the plaintiff notified the co-op of the transition and specifically asked the co-op to take precautions to avoid overspray when applying pesticides to adjacent fields. According to the plaintiff, the coop caused pesticide drift and damage to the crop during the 1998, 2002, 2005, 2007, and 2008 crop years.

On numerous occasions, the plaintiff filed complaints with the Minnesota Department of Agriculture (MDA) against the co-op. The agency investigated the incidences of overspray and determined that the co-op did, indeed, illegally spray causing drift that "tainted" the plaintiffs' crop. The first problem was reported in 1998 and the co-op apologized.

Problems again occurred in 2002 and the farmer griped to the MDA. That resulted in an out-of-court settlement. Problems again occurred in 2005.

Ultimately, the co-op agreed to pay the farmer damages for lost production and agreed to give the farmers notice 24 hours before spraying adjacent fields. In 2007, the co-op again over-sprayed and the MDA required the farmers plow under the tainted soybeans. Yet again, in 2008, MDA found evidence of overspray and cited the co-op for illegal spraying.

The farmer sued the co-ope for the damage done to the 2005, 2007, and 2008 crops. In June 2009, the trial court granted a temporary injunction in favor of the plaintiff, barring the co-op from spraying within one-half mile of the plaintiff's farms and requiring the co-op to give notice when spraying "in the area."

On the merits of the case, however, the trial court granted summary judgment in favor of the co-op and dismissed the plaintiff's claims of trespass, nuisance, and negligence per se (under the statute). The court held that the claims regarding the 2005 crop were time-barred, the claim of trespass was not allowed because Minnesota does not recognize "trespass by particulate matter," and the claims of nuisance and negligence per se were dismissed because the plaintiffs failed to present evidence of damage done by the co-op to the organic crop. Importantly, the trial court held that the plaintiffs failed to produce evidence from chemical tests that proved that the chemical residue exceeded the 5 percent tolerance limits established under the federal organic-certification regulations.

On appeal, the primary issue was whether the trial court improperly dismissed the trespass claim by concluding that pesticide drift cannot constitute a trespass in Minnesota. Also at issue was whether the trial court erred in dismissing the negligence per se and nuisance claims for lack of evidence.

On the trespass claim, the appellate court noted that the issue of whether unwanted pesticide drift from a targeted field to an adjacent organic field constitutes trespass is an issue of first impression for the Minnesota courts. However, the issue has arisen elsewhere and it is not a new issue. In perhaps the lead case on the issue (which was not referenced by the court), the Supreme Court of Washington affirmed a trial court's award of damages to an organic farming operation that incurred damages from the drift of aerially applied pesticides. In Langan v. Valicopters, 567 P.2d 218, Wash. 1977, a crop duster sprayed chemical pesticide on the organic farmer's land. The appellate court held that there was substantial evidence of damage to the crop, and that the crop duster was strictly liable for damages because crop spraying is an abnormally dangerous activity. The court also determined that the crop duster's conduct displayed "wanton" disregard for causing damage to the plaintiff's organic crop.

In Minnesota, a trespass claimant must show that they had rightful possession of the land and that the defendant's "entry" onto the land was unlawful. The appellate court cited chemical-drift trespass cases from other jurisdictions to conclude that "a trespass action can arise from a chemical pesticide being deposited in discernable and consequential amounts onto one agricultural property as the result of errant overspray during application directed at another." In Minnesota, odors emanating from the application of chemical pesticides, alone, cannot constitute a trespass. That rule hasn't changed. But, in this case, the emanating odors were joined with the dispersion of substances that drifted to the land and left deposits which damaged the crop. Thus, the appellate court remanded the case to the trial court, and instructed the court to uphold the trespass action if the pesticide deposits were "discernable" and in "consequential amounts."

On the nuisance and negligence per se claims, the appellate court reversed, finding instead that the organic farmer presented "prima facie" evidence of damages caused by the pesticide drift. The appellate court believed that the district court "inferred" too much from the federal regulations regarding organic crop labeling. Though the defendant's argument was "persuasive," the court concluded that the operative regulation (7 C.F.R. 05.202(b)) states that "any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as 'organic' must ... have had no prohibited substances... applied to it for a period of three years immediately preceding the harvesting of the crop." The co-op argued that the presence of "detectable residue" did not necessarily mean that the organic product could not be sold if under the 5 percent safe harbor regulation. The appellate court did not agree with the co-op's argument. The court held that even though the plaintiffs could not establish 5 percent contamination levels, they still had enough evidence to establish damage to the organic crops over several growing seasons. According to the court, the plaintiffs suffered "substantial inconveniences" as a result of the drift, including MDA orders recommending the destruction of the contaminated crop.

The court's opinion is relatively short, and is deficient in several respects. For instance, it is not entirely clear what liability theory applies in such cases. All the appellate court said was that the trial court erred in concluding that the organic farmer's trespass claim failed as a matter of law. But, that doesn't mean that the farmer will ultimately win the case, and it will be interesting to see if clarification is made of the liability rule utilized in such cases. Strict liability will probably not be the rule that is utilized. Courts often refuse to impose a strict liability standard when the plaintiff is abnormally sensitive to the defendant's conduct at issue. Organic crop growing activities are quite sensitive to pesticide drift. But, it is possible that a strict liability rule could be imposed if the court determines that adjacent conventional (or GMO) crop farmers planted their crops with the knowledge that crop spraying activities could pose a significant risk to an adjacent organic crop. It's not unlike the situations that have arisen in recent years concerning "genetic drift" of patented technology via cross-pollination to non-GMO crop fields.

A unique fact in this case is that the organic farmer operates a 1,500-acre farm in the midst of conventional crops. He is surrounded by non-organic growers. So, who is trespassing upon whom? What activity is the nuisance - conventional farming or organic farming? According to the facts as recited by the court, the farmer made the decision to switch to organic farming in the 1990s. Although we don't have enough facts from the court's opinion to tell, it is probably safe to assume that the surrounding farms were all growing conventional crops at that time. Did they approve this "non-conforming" use? Does that impact the outcome of the case or the analysis of the liability rule to be imposed? Should it? What is viewed as a normal land use activity in this case? What is abnormal? Should ag property be zoned to separate out the organic uses from conventional, from GMO?