Pesticide Drift over Organic Fields May Constitute Actionable Trespass

A Minnesota appellate court has ruled, as a matter of first impression, 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.” Johnson v.
Paynesville Farmers Union Coop. Oil Co., Nos. A10-1596 and -2135 (Minn. Ct.
App., decided July 25, 2011).

The plaintiffs were organic farmers who alleged that the defendant, a
commercial pesticide applicator, repeatedly sprayed adjacent farms on windy
days, in violation of the law, resulting in contamination of their crops from
drifting chemicals. Despite the plaintiffs’ specific requests that the defendant
avoid overspraying pesticide onto their fields when treating adjacent fields,
the defendant contaminated their crops in 1998, 2002, 2005, 2007, and 2008,
causing them to sell their products at lower prices or destroy some crops, and
forcing them to take acreage out of production for three years following each
incident to comply with National Organic Program (NOP) regulations. Alleging
trespass, nuisance and negligence per se, the plaintiffs sought damages and
injunctive relief.

The trial court initially granted a request for temporary injunction, but then
dismissed the claims on the merits, vacated the temporary injunction and
denied requests for permanent injunction and to amend the complaint. The
appellate court reversed and remanded.

According to the court, the lower court misread an opinion that did not allow
odor claims to be pursued under a trespass theory. The plaintiffs here “do not
claim trespass based on transient odors. Instead, they primarily complain that
the liquid chemicals that the cooperative sprayed into the air from neighboring
fields drifted, landed, and remained on the Johnsons’ organic crops in
detectable form, contaminating them. And while wafting odors will not affect
the composition of the land, a liquid chemical pesticide or herbicide being
sprayed for agricultural purposes will; by design, it descends and clings to soil
or plants, killing organisms.”

The court also determined that the lower court misconstrued the organic certification regulation when it ruled that the plaintiffs failed to present sufficient evidence of damages caused by the drift. According to the court, even if pesticide residues show less than 5 percent contamination (EPA’s tolerance standard), a certifying agent could decide not to certify a field as organic because any noncompliance with NOP requirements can lead to a revocation or suspension of certification. The operative regulation requires that crops labeled and sold as “organic” be produced from fields that have had “no prohibited substances . . . applied to [them] for a period of 3 years immediately preceding harvest of the crop.”