Supreme Court: Pesticide drift is not trespassing

Supreme Court: Pesticide drift is not trespassing

Source: St. Cloud Times (MN), August 2, 2012
Posted on: http://envfpn.advisen.com

The state Supreme Court ruled Wednesday that it’s not trespassing when a pesticide sprayed on one property drifts to another property.

The ruling overturns a decision last summer by the state Court of Appeals that said pesticide drifting from its intended farm onto an adjacent Stearns County organic farm could be considered a trespassing violation by the company that sprayed the pesticide.

The Supreme Court ruling affirms a ruling previously made by Stearns County District Court Judge Kris Davick-Halfen, who ruled that Minnesota law doesn’t recognize “trespass by particulate matter.” She had dismissed the lawsuit filed by organic farmers Oluf and Debra Johnson, who sued Paynesville Farmers Union Cooperative Oil Co.

The Johnsons alleged that the co-op’s spraying of crops on nearby farms on windy days caused the pesticide to drift onto their organic crops and damage them, preventing the Johnsons from selling those crops as organic. The Johnsons also had to take parts of their fields out of production for three years because of the presence of the unwanted pesticide.

The Stearns County case was the first in Minnesota in which an appellate court was asked to decide whether pesticide drift can constitute a trespass.

And while the Supreme Court upheld the dismissal of the trespassing charges, it sent the case back to Stearns County so that the Johnsons’ negligence and nuisance claims can proceed.

The Johnsons turned their farm into an organic one in the 1990s to take advantage of the higher prices organic crops and seeds bring. They posted signs noting that the farm was organic, created a buffer between their property and neighboring farms, and asked the co-op to take precautions to avoid overspraying, according to court records.

But the co-op violated state law four times from 1998-2008 by spraying chemicals that landed on the Johnson’s organic farm, according to the court’s records.

A 2002 overspray led to the Johnsons selling their crops at lower, nonorganic prices and taking the tainted field out of production for three years, the period required to be free of synthetic pesticides for organic designation. In 2005, 2007 and 2008, the overspray led the Johnsons to destroy alfalfa and soybeans.

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