Organic Broadcaster

 

Minnesota court cases reveal legal issues in pesticide drift incidents

By Dean M. Zimmerli

Although the popularity of organic farming methods has increased in recent years, there is no question that conventional farms still make up the vast majority of farms in this country, and almost all organic farms share a boundary with a conventional farm. Thus, there is an ever-present risk that pesticide application on a neighboring farm could result in spray drift onto the organic farm.

The most immediate consequence of spray drift onto an organic field is the potential loss of the organic status of the crop. Further, spray drift can cause plant damage and resulting yield loss. Deciding who is responsible for damages in a pesticide drift situation can be challenging, as organic farmers in Minnesota discovered when they sued a pesticide applicator.

Oluf and Debra Johnson are organic farmers in Meeker County and were transitioning one of their soybean fields to organic, which required they farm the field with organic practices for three years before they could market the crop as “organic.” A local farming cooperative sprayed a neighbor’s field with a combination of glyphosate, diflufenzopyr, and dicamba on a day when winds were blowing toward the Johnsons’ soybean field. Testing by the Minnesota Department of Agriculture found dicamba residue on the soybeans. The Johnsons’ organic certifying agent determined that the soybean field would have to be returned to the beginning of its 36-month transition phase (i.e., they would not be able to market their crop as organic for an additional 36 months). The Johnsons tilled in the contaminated portion of the crop. The following year, spraying by the same cooperative resulted in potential contamination of the Johnsons’ organic alfalfa.

The Johnsons eventually started a lawsuit against the cooperative seeking damages for lost profits from having to take the fields out of organic production for three years and for the crop that had to be destroyed because of the contamination. The case, Johnson, et al. v. Paynesville Farmers Union Cooperative Oil Co., eventually wound its way to the Minnesota Supreme Court, which was asked to decide what legal theories the Johnsons could advance against the cooperative for the spray drift.

The first legal theory the Johnsons advanced was trespass. Most people are familiar with the concept of trespass; if a person enters onto another’s property without permission, it is trespassing and the trespasser can be liable for any damage caused. The Johnsons argued that the cooperative “trespassed” by causing particulate spray to drift over and enter their property. The Minnesota Supreme Court rejected this argument, holding that the entry of particulate matter is not a “trespass” under Minnesota law. However, the court did recognize that several other states have come to the opposite conclusion.

The Johnsons next argued that the cooperative should be liable under a nuisance theory. Minnesota law provides that a nuisance is “anything which is injurious to the health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” More simply, a nuisance is conduct that interferes with another person’s use and enjoyment of their property. The court recognized that the Johnsons may have a viable nuisance claim for the spray drift.

The Minnesota Supreme Court also looked at whether the cooperative might be responsible on a theory of negligence. Negligence is simply the failure to act in a reasonable manner to avoid harming other people or property. The court held that the Johnsons may also have a viable negligence claim if they prove the cooperative was not careful enough in applying pesticides to neighboring fields.

Finally, the Minnesota Supreme Court looked at whether the cooperative could be held liable for damages resulting from the destroyed crops, loss of organic certification, and the three-year delay in being able to market the crops as organic. In deciding this question, the court interpreted federal organic regulations to determine whether the Johnsons’ fields should have been decertified in the first place, or whether it was their certifier’s fault for mistakenly decertifying the field.

After interpreting the federal regulations, the Minnesota Supreme Court held that the inadvertent, accidental application of spray to an organic field does not require the removal of their field from “organic” production certification. The court determined the Johnsons’ organic certifier was mistaken, and the certifier was the cause of the destroyed crops and loss of certification, not the cooperative. Thus, the Minnesota Supreme Court concluded the cooperative could not be held liable for those damages.

Second Lawsuit
Several years after the Johnsons’ first suit, another cooperative allegedly damaged their alfalfa field when spraying a neighboring conventional farm. The Minnesota Department of Agriculture inspected the Johnsons’ field, found prohibited chemicals, and ordered the contaminated alfalfa be destroyed. The Johnsons’ organic certifier, however, initially concluded that the field did not need to be decertified from organic status. Interestingly, the Johnsons then appealed their certifier’s decision, and the USDA National Organic Program overruled the certifier’s decision and suspended the field from organic certification for three years.

The Johnsons sued again, arguing this time that because new guidance from the USDA concerning inadvertent spray drift and the NOP’s final determination means the Minnesota Supreme Court was mistaken in their first case and that the Johnsons should be able to recover damages for the loss of organic certification.

The Minnesota Court of Appeals considered the Johnsons’ arguments. Unfortunately for the Johnsons, the Minnesota Court of Appeals considered itself bound by the Minnesota Supreme Court’s decision in the earlier Johnson case. Thus, the Court of Appeals held that the alleged damages for the loss of certification were not caused by the cooperative. The Minnesota Supreme Court afterwards declined to consider the Johnsons’ arguments again.

Considerations for Organic Producers
The Johnson cases provide some useful guidance for farmers facing a spray drift problem. First, if the farmer can show that the applicator did not act reasonably in applying pesticides, such as failing to follow application instructions or spraying on windy days, the farmer may have a negligence claim. Similarly, the farmer may also have a nuisance claim. However, in many cases, damages will be limited to lost yields or for crops ordered destroyed. Until the Minnesota Supreme Court revisits the Johnson decision, it is unlikely that farmers will be able to recover lost revenue because of a loss of organic certification.

In many situations, the cost of a lawsuit may be prohibitive. The old adage that “an ounce of prevention is worth a pound of cure” is particularly applicable. Organic farmers should maintain buffers around their vulnerable crops to avoid any potential cross contamination and inadvertent spray drift. Further, it may be worth having discussions with neighboring producers, informing them about organic or otherwise vulnerable crops, and requesting that spraying is done when the risk of drift is low.

It is unlikely that the prevalence of pesticides in agriculture will significantly diminish in the near term. As the prevalence of organic and other non-conventional farming methods rise, it means farmers of all stripes will be dealing with risks of potential spray drift. And while there are some legal remedies for farmers impacted by spray drift, some preventive practices and communication with neighbors are still the best solutions.

Dean Zimmerli is an attorney with Gislason & Hunter, LLP, where he advises farmers and ag businesses about drainage and water issues, land use, environmental regulation, contract disputes, and other issues. Email him or call 507-354-3111.

 

From the September | October 2019 Issue

 

Back to Current Issue

Comments are closed.