Supreme Court rejects pesticide trespass

State's justices said the organic farmers plaintiff can sue for negligence over contaminated crops.

Pesticide that drifts onto an organic farm is negligence -- not trespassing -- the Minnesota Supreme Court said Wednesday, overturning a lower court decision that supporters of organic food had considered a significant victory.

But in a mixed opinion, the justices also sent the case back to the trial court so the plaintiff farmers could make a case to recover a portion of the economic losses.

Environmental lawyers said the decision provides important clarification of the legal recourse for Minnesotans who have been harmed by drifting pollution, anything from pesticide to soot. Rather than simply proving that drift has occurred, which is what the Appeals Court decided in the pesticide case, plaintiffs must prove negligence and, in order to win damages, they also have to prove harm.

"They have to show the action was unreasonable in some way, and that's harder to prove," said Alexandra Klass, an environmental law professor at the University of Minnesota.

The pesticide drift case is one among many across the country that illustrate how the fight over farm chemicals has become contentious. Consumers and health experts are worried about the consequences of pesticides and herbicides in the food chain, and the demand for organically grown food is rising in lockstep with their concerns.

The suit was filed by Oluf and Debra Johnson, organic farmers in Stearns County. When they decided to go through the complex, three-year process of organic certification in the 1990s, they asked the local cooperative, Paynesville Farmers Union, to take precautions with spraying pesticides around their farm, according to court documents.

But in the following 10 years, the cooperative repeatedly sprayed neighboring land with pesticides that drifted over to their farm. The Johnsons had to burn fields, plow under soybeans and take their fields out of production when they lost their organic certification under federal rules. They sued the co-op in 2009, charging negligence and trespassing.

Trespassing clarified

The district court threw out the suit, saying Minnesota does not recognize trespassing "by particulate matter," and that the Johnsons could not prove damages.

The Appeals Court disagreed, ruling that Minnesota law recognizes many things as trespassing, including thrown objects, water and bullets.

But the Supreme Court, in an opinion written by Justice Lorie Skjerven Gildea, agreed with the district court. Pesticide drift is "intangible" and cannot be a form of trespassing, the decision said.

The court also said the amount of pesticides on the Johnsons' crops was not enough to violate their organic certification under federal rules. The agent who told them they had to repeat the three-year certification process interpreted the rules incorrectly, the court said.

That provides important clarity for both organic and conventional farmers, said Rich Sobalvarro, the attorney for the Paynesville cooperative.

"If your neighbor gets something on your land, you don't lose your certification," he said. "That's a good thing. It provides a clear guide ... as to how both can use their land."

But Arlo H. Vande Vegte, the Johnsons' attorney, said that even though it provides clarity, the decision is a blow to the quality of organic food in Minnesota.

From now on, when pesticide drift occurs, he said, farmers will be less likely to lose their organic certification.

"There will be a bunch of organic farmers who will say, 'I have drift, but you can't decertify me,'" he said. "Which means that there will be more and more pesticides in organic products."

Josephine Marcotty • 612-673-7394

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