Is Pesticide Drift Trespass?

Farmer applies insecticide targeted against western corn rootworms in soybeans. Photo by Ken Hammon.

Farmer applies insecticide targeted against western corn rootworms in soybeans. Photo by Ken Hammon.

Whether pesticides are sprayed from the air, applied or to the soil in neighboring fields, forest tracts or golf courses, the problem of pesticide drift is an important concern for many.  That is why the recent Minnessota Supreme Court decision raised quite a few eyebrows and demands a closer look.

At issue was the allegedly repeated damage sustained by an organic farm due to pesticide drift from a neighbor.  The Minnessota Supreme Court overturned a favorable ruling for the organic farmers when it held that pesticide drift is not trespass and offered a surprising interpretation of organic standards that seems to fly in the face of common logic.

The Minnesota Supreme Court ruled that pesticide drift was not trespass because drift was not a “tangible invasion” of the organic farmers “right to exclusive possession of the land.”  Since one cannot see the pesticide drift like one could see, for example, water or a bullet invading a property, the majority held that drift is considered a “particulate matter” which is an “intangible agency” whose invasion “do not require that the landowner share possession of her land in the way that invasions by physical objects do.”

In so doing, the Court affirmed the traditional view of what constitutes an invasion for trespass purposes and ruled that the organic farmers cannot meet all the legal requirements to prove their trespass claim.  The Court found that instead the organic farmers’ claims should be based in negligence and nuisance as the neighbor’s actions interfered with the organic farmers “use and enjoyment of the land,” and not their posession of it.

In a dissenting opinion, Justice Page wrote that the majority’s opinion would have made more sense at the time when science was not as precise as it is now and that the distinction between negligence and trespass is not sound today. Justice Page also stated that “[t]he proper distinction between trespass and nuisance should be the nature of the property interest affected … particularly when that intangible object is actually a substance that settles on the land and damages it.” In such cases, an intangible object may cause a trespass.

Trespass would have been a somewhat easier legal remedy for plaintiffs to pursue because, under the Minnesota law, while a party is still required to show that there was an intentional and unlawful entry unto a property, demonstrating damages is not necessary unlike in negligence and nuisance cases.  Also, unlike in negligence cases, in trespass cases a defendant cannot rely on “reasonablessness” as a defense to its trespass liability.

Facts in the Case

The case stems from events that began in 2007 when the organic farmers, Oluf and Debra Johnson, complained to the Minnessota State Department of Agriculture (MDA) that Paynesville Farmers Union Cooperative Oil Company (Cooperative) had, allegedly, contaminated one of their transitional soybean fields through pesticide drift.

The National Organic Program (NOP) requires that “land from which crops are intended to be sold as organic must “[h]ave had no prohibited substances … applied to it for a period of 3 years immediately preceding harvest of the crop.”

According to the decision, after the MDA investigated, the Johnsons were required to plow down approximately 10 acres of their soybean field because of the presence of  dicamba and based on the visual damage observed to their crop.  The Johnsons also notified their organic certifying agent and, based on his letter and because dicamba contamination was found, they decided that they had to take their land back to the beginning of the 3 year organic transitional process.

Two more contamination events were alleged by the Johnsons in 2008 — this time to one of their transitional alfalfa fields. They once again complained to the MDA.  Testing revealed the presense of glyphosate and chloropyrifos but no damage to plants was observed and the MDA concluded that drift from the Cooperative’s spraying caused both of the positive test results.  After receiving these test results, the Johnsons took the affected alfalfa field out of organic production for an additional 3 years.

In their complaint, the Johnsons claimed: (1) loss of profits for fields taken out of organic production for 3 years; (2) loss of profits because they had to destroy approximately 10 acres of soybeans; (3) inconvenience due to increased weeding, pollution remediation, and NOP reporting responsibilities; and (4) adverse health effect.

No Negligence Under Organic Standards

In addition to finding that the Johnsons could not allege trespass, the Court’s majority also held that farmers could not base their negligence case on their inability to market their crops as organic as a result of violation of the organic standards.  The Johnsons claimed that since pesticides from the drift were “applied to” their crops this violated the organic standards which prevented them from selling their crops as “organic.” But the Court disagreed and instead read the phrase “applied to” as solely referring to the behavior of the organic producer and not a third-party like the Cooperative in this case.

The majority’s interpretation of the organic standard, namely, that “applied to” refers only to the application by an organic farmer rather than a third-party, caused a strongly worded dissent from Justice Page who wrote that “[t]his conclusion flies in the face of our rules of construction as well as common sense.”

Justice Page explained that the organic regulation language forbidding “prohibited substances” from being applied to land “indicates that the concern is what the land in question was exposed to, not how it was exposed, why it was exposed, or who caused the exposure.”

Justice Page continued:

Evidently, under the court’s reading of the regulations, if a third party intentionally applies a prohibited pesticide to an organic farm field in a quantity sufficient to leave a residue that violates the regulation, 7 U.S.C. § 6511(c)(2)(A) (2006) would not prohibit the product’s sale as an organic product because the producer had not applied the prohibited pesticide. … 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.

The Court remanded the case back to the trial court for a determination whether the Johnsons can allege a negligence claim that is not based on the violation of the organic standards.