Wednesday, August 03, 2011

Minnesota Court of Appeals Rules Chemical Pesticides Drifting from Conventional Farm to Organic Farm May Constitute Trespass!

Johnson vs. Paynesville Farmers Union Cooperative Oil Company (Case No. A10-1596 A10-2135)

The ruling of the court in this case (Johnson vs. Paynesville Farmers Union Cooperative Oil Company) is that chemical pesticide drifting from one farm to another because of errant overspray may constitute trespass. Under a similar analysis, I can imagine that an organic farmer will be able to sue (and potentially prevail against) a conventional farmer whose GMO seeds contaminate an organic farmer's land. This intrusion onto the organic farmer's land would be a trespass by GMO seeds under the analysis used by this Minnesota court.

The Court of Appeals overturned the lower court ruling which had denied relief to the Johnsons. The facts of the case at hand involves an alleged trespass by chemical pesticides from one farm to another:

In the 1990s, Oluf and Debra Johnson began the three-year process of converting their conventional family farm to a certified-organic farm to realize the higher market prices for organic produce and seeds. Oluf Johnson posted signs at the farm’s perimeter indicating that it was chemical free, maintained a buffer zone between his organic fields and his chemical-using neighbors’ farms, and implemented a detailed crop-rotation plan. He also notified commercial pesticide sprayer Paynseville Farmers Union Cooperative Oil Company of the transition. He specifically asked the cooperative to take precautions to avoid overspraying pesticide onto his fields when treating adjacent fields.

Despite the Johnsons’ requests, in 1998, 2002, 2005, 2007, and 2008, the cooperative sprayed pesticide and herbicide on fields adjacent to theirs in a manner that violated Minnesota law, causing chemicals to land on the Johnsons’ farm. Oluf Johnson complained to the cooperative after the 1998 incident, and it apologized, promising to “make it right.” But when the Johnsons gave the cooperative an invoice documenting their losses from the overspray, the cooperative refused to pay.

Oluf Johnson complained to the Minnesota Department of Agriculture (MDA) after the 2002 overspray. The MDA investigated and determined that the cooperative illegally sprayed herbicide, causing visually apparent tainting of the Johnsons’ crops consistent with drift. Johnson sold his herbicide-tainted crops at lower, nonorganic prices and, as required by federal regulation, removed the tainted field from organic production for three years. The Johnsons settled their losses with the cooperative for that incident.

Under that settlement, the cooperative paid damages and agreed to give the Johnsons 24 hours’ notice before it sprayed in any adjacent field.

The cooperative oversprayed adjacent fields again in 2005 and the Johnsons again contacted the MDA. The MDA investigated, found drift, and instructed the Johnsons to burn their contaminated alfalfa. In addition to losing the tainted alfalfa, the Johnsons could not grow anything on the burn spot and took the contaminated field out of organic production for three years.

The cooperative again oversprayed in 2007. Johnson again contacted the MDA, and after investigating the MDA required Johnson to plow under a 175-foot wide strip of soybeans running the entire length of his field. He was also told by the state’s organic certifying agent that if any pesticide residue was detected, he must take the field out of organic production for three years. The MDA detected pesticide residue, and so Johnson took the field out of organic production.

Johnson again notified the MDA in 2008 about the cooperative’s spraying in July and August. He smelled chemicals in the air over his field, leaving him with “cottonmouth, headache and nausea” and his wife a headache and nausea. The MDA investigated and again cited the cooperative for illegally spraying, and the Johnsons again took the affected fields out of organic production for three years. He plowed part of the alfalfa field under because it was “becoming choked with weeds and the alfalfa was very sick and poor.”

In January 2009, the Johnsons sued the cooperative for the 2005 and 2007 incidents. They asked the district court to enjoin the cooperative from spraying within one-half mile of their farm and for damages based on common-law theories of trespass, nuisance, negligence per se, and battery. In June 2009, the district court granted a temporary injunction, prohibiting the cooperative from spraying within one-quarter mile of the Johnsons’ farm and requiring it to give notice of its spraying activities in the area.

In April 2010, the Johnsons moved to amend their complaint to include damages from the 2008 incidents.

The district court granted summary judgment in the cooperative’s favor and dismissed all of the Johnsons’ claims. It concluded that the claims arising from the 2005 overspray are time barred. Regarding the 2007 overspray, the district court dismissed the trespass claim because it concluded that “trespass by particulate matter” is not recognized in Minnesota; it dismissed the nuisance and negligence-per-se claims because the Johnsons presented no evidence that the cooperative’s spraying caused damages; and it dismissed the battery claim for lack of evidence of intent. The district court also denied the Johnsons’ motion to amend their complaint, reasoning that the claims arising from the 2008 overspray would fail for the same reasons the 2007-overspray claims failed. The district court consequently denied the Johnsons’ request for permanent injunctive relief. The Johnsons appeal.

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