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Drifting pesticides basis for trespass case

An appellate court in Minnesota has agreed with an organic farmer that “pesticide drift” from a neighboring farm can be trespass.

The ruling from the Minnesota Court of Appeals returned to district court a case brought by organic farmers Oluf and Debra Johnson, who claimed chemical pesticide spraying by the owner of land adjacent to theirs, the Paynesville Farmers Union Cooperative Oil Co., damaged them.

The appeals court decision clears the way for the Johnsons to proceed with action to recover losses incurred over the years from the farm coop’s spraying.

“We do not speculate as to the Johnsons’ damages, but we hold that the district court erroneously rejected their claims for lack of damages on the ground that, by virtue of there having been no finding of five-percent contamination, no damages could be proven,” said the court.

“Because the regulations and commentary fail to expressly state what happens if drift causes a less-than-five-percent contamination to an organic farm, we assume that the certifying agent has the discretion to decertify or not decertify the field. … We add that the Johnsons alleged other damages not considered by the district court,” the appeals judges wrote.

According to the appeals court, the Johnsons began a process of rotating their crops into a certified organic farm in the 1990s. The Johnsons notified the surrounding farms that were chemical users, posted signs on their property boundaries, and maintained a buffer zone between their crops and their neighbors crops.

But despite the Johnsons’ requests, in 1998, 2002, 2005, 2007 and 2008, the cooperative next door sprayed pesticide and herbicide on fields adjacent to theirs in a manner that violated Minnesota law, specifically on windy days, causing chemicals to land on the Johnsons’ farm.

When the Johnsons informed the cooperative of the error in 1998, the cooperative apologized, and promised to “make it right.” But when presented an invoice to pay for the damages, the cooperative refused to pay, according to court records.

After an overspraying incident in 2002, the cooperative was cited by the Minnesota Department of Agriculture for applying spray on a windy day, and the cooperative did reach a settlement with the Johnsons. The farm cooperative has been cited four times for applying spray on windy days.

But the Johnsons were forced to remove the affected fields from the crop rotation plan for three years each time they were affected by the overspraying next door. After a complaint to the MDA in 2005, the Johnsons were forced to burn an alfalfa crop that had been contaminated, and in 2007 they were forced to plow under a 175-foot wide strip of soybeans running the entire length of their field.

They also were forced to take that field out of production for three years after an agriculture agent discovered pesticide residue in their crop. The state sets standards of allowable herbicides and pesticides for farms to be considered organic, a designation that produces higher prices for their crops. In 2008, the Johnsons detected overspraying in their fields and became sick and nauseated from the smell. The cooperative was once again cited, the case reports.

Ultimately, the Johnsons turned to the courts, and now the appellate court has ordered hearings to deal with the dispute.

The appeals judges noted that the lower court has relied wrongly on an earlier case involving farm odors to determine overspray was not illegal.

The pending case involves “particulate matter,” not just odors, the court noted.

The Minnesota Supreme Court has already ruled that “throwing an object” onto neighboring property constitutes trespass, and an errant bullet fired into neighboring property can constitute trespass, so the particulate matter, designed to cling to plants, can also constitute trespass.

Famed martial arts champion, actor and author Chuck Norris has addressed the issue of organics.

He listed 10 reasons to buy local organic products, including that the option provides less opportunity for tampering or contamination.