Supreme Court: Pesticide drift isn't trespassing

Chemicals drifting from one farm to another do not constitute trespassing under state law, according to a Minnesota Supreme Court ruling Wednesday (Aug. 1).

This decision could make it harder for organic farmers to seek relief if crops are damaged by pesticide drift.

In reversing a 2011 appeals court ruling, the Supreme Court said Minnesota does not recognize trespassing by "particulate matter." The high court said the earlier appeals court ruling that found otherwise went "beyond our precedent."

The ruling came in the case of organic farmers Oluf and Debra Johnson, who sued the Paynesville Farmers Union Cooperative Oil Company in 2009. The Johnsons alleged that the co-op repeatedly sprayed pesticides that drifted onto their fields, preventing them from selling their crops as organic.

The Johnsons claim that they lost money when they destroyed crops and took contaminated fields out of organic production to remain in compliance with organic farming regulations.

"As a public policy thing, it is a very momentous decision," the Johnsons' attorney, Arlo Vande Vegte, said. "They are tipping their hat in favor of the conventional farmers ... and the pesticide industry, which is huge."

However, the Supreme Court said the district court never considered the Johnsons' nuisance or negligence claims, so those claims were sent back to the district court for consideration.

"Trespass claims address tangible invasions of the right to exclusive possession of land, and nuisance claims address invasions of the right to use and enjoyment of land," Chief Justice Lorie Skjerven Gildea wrote for the majority opinion.

The ruling said the Johnsons don't claim there was an invasion by a tangible object, but instead claim the cooperative's actions prevented them from using their land as they wanted. Therefore, the court ruled, "the Johnsons' claim is one for nuisance, not trespass."

Justice Alan Page disagreed, saying "the court's one-size-fits-all holding that particulate matter can never cause a trespass fails to take into account the differences between these various substances."



Higher hurdles

for organic farms

Brian Clark, an environmental attorney in Minneapolis, said the ruling will make it harder for an organic farmer to get relief when harmed by pesticide drift.

"In terms of hurdles, (organic farmers) have a higher bar to show now in order to bring a nuisance or negligence claim," Clark said.

"Looking at the big picture, they shouldn't be doing this right next to each other to begin with," he added. "If it's important enough to organic farmers, they need to find a legislative fix."

The state's highest court also analyzed organic farming regulations and found that organic farmers who experience pesticide drift from a third party, but do not intentionally apply the chemicals themselves, may still be certified as organic if the chemicals are below five percent of levels tolerated by the Environmental Protection Agency.

The court wrote that the Johnsons interpreted the law to mean that any amount of pesticide, no matter how it was applied, would require the field be taken out of production. The court said, "that interpretation is not reasonable, and we decline to adopt it."

Page, the dissenting justice, also disagreed with the majority's conclusion that organic farming regulations don't apply to the presence of pesticides caused by drift.

"The court's reading makes no sense because no matter who applies the prohibited pesticide and no matter how the pesticide is applied, whether by drift or otherwise, the end product will be no less contaminated and no less in violation of regulations limiting such contamination," Page said.

Rich Sobalvarro, an attorney for the cooperative, said the ruling was "a very logical result when you think about what it means for agriculture as a whole." He said that the five percent level "establishes a bright-line test for what is organic and what is not."

Vande Vegte, the Johnsons' attorney, said he plans to take the case forward. He said the court noted that his clients still have nuisance claims available, and he'll talk with them about their options.