July 26, 2011

The Minnesota Court of Appeals ruled that pesticide overspray that drifted onto a neighboring organic farm may give rise to a tort claim of trespass. The Court of Appeals reversed an earlier district court ruling that had dismissed the farmer’s trespass, nuisance, negligence-per-se claims and battery claims against a farm cooperative that had sprayed adjacent farm fields.

In the 1990s the farmer began the process of converting a conventional family farm to a certified organic farm to realize the higher market prices for organic produce and seeds. The farmer rotated fields, created a buffer zone with his chemical-using farmer neighbors and posted signs at the perimeter indicating his fields were chemical free. Despite the farmer’s requests, a neighboring cooperative sprayed pesticides and herbicides on adjacent fields in a manner contrary to Minnesota law that caused chemicals to land on the plaintiffs land.

The illegal spraying occurred repeatedly in 1998, 2002, 2005, 2007 and 2008. The Minnesota Department of Agriculture investigated, found illegal spraying operations by the farm cooperative, took enforcement action and determined that crops could not be designated as organic and required the farmer to plow under certain crops. Specifically, the Department found that the spraying was done when wind speeds were in excess of five miles per hour which specifically violated a warning on the label of the pesticide container not to spray or apply on windy days.

In 2009 the framer sued the cooperative and sought an injunction from spraying within a half mile of their farm. In 2009 the district court granted a temporary injunction prohibiting spraying within a quarter mile and requiring notice of the spraying.

Later the district court granted summary judgment for the cooperative and dismissed all of the farmer’s claims. In a case of first impression, the Minnesota Court of Appeals held that unwanted pesticide drift from a targeted field to an adjacent organic farming operation may constitute a trespass. The Court held: “(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.” The Court of Appeals noted that the plaintiff organic farmer complained that the cooperative’s chemicals drifted, landed and remained on the farmer’s crops in detectable form contaminating them and rendering his crops unsalable as organic produce. The case was remanded or sent back to the district court for further proceedings consistent with the appellate court’s ruling. A copy of the Minnesota Court of Appeals decision is found at: http://www.mncourts.gov/opinions/coa/current/opa101596-0725.pdf.

The Court of Appeals noted that its decision was consistent with other Minnesota cases, including a recent decision involving bees that had been killed by a pesticide overspray incident, a negligence action involving crop dusting impacts on neighboring fields and, finally, a case involving errant bullets shot onto private property near a gun range. The Minnesota court also cited cases from other states (notably Alaska and Washington) where courts have found that airborne particulate emissions from smelting operations could constitute trespass onto a neighbor’s land.

The case is of interest and is precedent setting. The court recognizes the right of an organic farmer to raise crops in a chemical-free environment. The court has also arguably broadened a trespass claim under common law. The use of common law and our court system as a remedy of environmental harm is a testament of where we are today as a society. As environmental agencies face budget pressures, there are fewer resources for inspections and enforcement actions. Often government processes do not resolve underlying concerns and disputes. Parties may find themselves considering filing suit under common law and related theories to recover damages.

The environmental law attorneys at Hessian & McKasy provide advice and counsel to clients on a range of matters. Our clients range from large manufacturing operations and Fortune 500 companies to small business owners, local units of government and individuals. We provide legal consultations on matters of all types. For more information about bringing or defending trespass claims, please contact Joseph Maternowski at jmaternowski@hessianmckasy.com

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