While cash crop farming in Minnesota is still largely dominated by corn and soybeans, there has been a recent rise in alternative crops and alternative farming practices. Some farmers are exploring new crops such as industrial hemp, while others have adopted organic farming practices in order to enjoy the price premium the market provides for certified organic farm products. While most of these farmers share in the same risks, such as price, weather, and crop failure, the rise of new crops and farming methods alongside conventional farms raises a serious risk that pesticide application on a neighboring farm could result in spray drift and damage to nonconventional crops. This raises legal concerns both for the farmer applying the pesticide, and the farmer impacted by spray drift.
Probably the most immediate legal consequence of spray drift onto an organic field is the potential loss of organic certification. There is some question whether an accidental and inadvertent exposure to a substance banned under organic regulations such as from spray drift must result in the loss of organic certification, but the details of the organic certification and decertification are beyond the scope of this article. Suffice it to say there is a risk that a spray drift situation could result in that farm losing its organic status.
But spray drift may cause other problems as well, affecting both conventional and organic farms, most notably crop damage. The introduction of GMO crops with herbicide tolerant traits poses risks to other farmers, organic or not, that plant crops without those resistant traits. The became particularly apparent in the 2018 crop year with the surging popularity of dicamba-tolerant soybeans, where spray drift caused sometimes significant damage to non-dicamaba-tolerant soybean fields, particularly on hot days. Even among farms employing conventional practices, spray drift can still cause damage if certain pesticides may, for example, be safe on corn, but harmful to soybeans.
Farm operators—both organic and conventional—may be interested in knowing who might be responsible for any damage or losses from spray drift.
Oluf and Debra Johnson’s Minnesota Supreme Court Case
To explore other consequences of a spray drift case in Minnesota, producers and pesticide applicators should be familiar with Oluf and Debra Johnson’s situation. The Johnsons are organic farmers in Meeker County and were transitioning one of their soybean fields to organic which required they farm the field with organic practices for three years before they could market the crop as “organic” under USDA regulations. A local farming cooperative sprayed a neighbor’s field with a combination of glyphosate, diflufenzopyr, and dicamba on a day when winds were blowing toward the Johnsons’ soybean field. Testing by the Minnesota Department of Agriculture found dicamba residue present on the Johnson’s soybeans. The Johnson’s organic certifying agent determined that the soybean field would have to be returned to the beginning of its 36-month transition phase (i.e., they would not be able to market their crop as organic for an additional 36-months), and the Johnsons tilled down the contaminated portion of the crop. The following year, spraying by the same cooperative resulted in potential contamination of the Johnsons’ organic alfalfa.
The Johnsons eventually started a lawsuit against the cooperative seeking damages for lost profits from having to take the fields out of organic production for three years, and for the crop that had to be destroyed because of the contamination. The case, titled Johnson, et al. v. Paynesville Farmers Union Cooperative Oil Co., eventually wound its way to the Minnesota Supreme Court, which was asked to decide what legal theories the Johnsons could advance against the cooperative for the spray drift.
The first legal theory the Johnsons advanced was trespass. Most people are familiar with the concept of trespass; if a person enters onto another’s property without permission, it is trespassing, and trespasser can be liable for any damage caused. The Johnsons argued that the cooperative “trespassed” by causing particulate spray to drift over and enter on to their property. The Minnesota Supreme Court rejected this argument, and held that the entry of particulate matter is not a “trespass” under Minnesota law. However, the Court did recognize that several other states have come to the opposite conclusion.
The Johnsons next argued that the cooperative should be liable under a nuisance theory. Minnesota law provides that a nuisance is “anything which is injurious to the health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property,” or more simply, a nuisance is conduct that interferes with another person’s use and enjoyment of their property. The Minnesota Supreme Court recognized that the Johnsons may have a viable nuisance claim for the spray drift.
The Minnesota Supreme Court also looked at whether the cooperative might be responsible on a theory of negligence. Negligence is the failure to act in a reasonable manner to avoid harming other people or property. The Court held that the Johnsons may also have a viable negligence claim if they prove the cooperative was not careful enough in applying pesticides to neighboring fields.
Finally, the Minnesota Supreme Court looked at whether the cooperative could be held liable for damages resulting from the destroyed crops, loss of organic certification, and the three year delay in being able to market their crops as organic. In deciding this question, the Minnesota Supreme Court interpreted federal organic regulations, to determine whether the Johnsons’ fields should have been decertified in the first place, or whether it was their certifier’s fault for mistakenly decertifying the field. After interpreting the federal regulations, the Minnesota Supreme Court held that the inadvertent, accidental application of spray to an organic field does not require the removal of their field from “organic” production certification. Thus, the Minnesota Supreme Court determined the Johnsons’ organic certifier was mistaken, and the certifier was the cause of the destroyed crops and loss of certification, not the cooperative. Thus, the Minnesota Supreme Court concluded the cooperative could not be held liable for those damages.
The Johnsons’ Second Lawsuit Against the Cooperative.
Several years after the Johnsons’ first suit, another cooperative allegedly damaged their alfalfa field when spraying a neighboring conventional farm. The Minnesota Department of Agriculture inspected the Johnsons’ field, found prohibited chemicals, and ordered the contaminated alfalfa be destroyed. The Johnsons’ organic certifier, however, initially concluded that the field did not need to be decertified from the organic classification. Interestingly, the Johnsons then appealed their certifier’s decision, and the National Organic’s Program of the USDA overruled the certifier’s decision and suspended the field from organic certification for three years.
The Johnsons’ sued again, arguing this time that because new guidance from the USDA concerning inadvertent spray draft and the NOP’s final determination means that the Minnesota Supreme Court was mistaken in their first case and that the Johnsons should be able to recover damages for the loss of organic certification.
The Minnesota Court of Appeals considered the Johnsons’ arguments. Unfortunately for the Johnsons, the Minnesota Court of Appeals considered itself bound by the Minnesota Supreme Court’s decision in the earlier Johnson case. Thus, the Court of Appeals held that the alleged damages for the loss of certification were not caused by the cooperative. The Minnesota Supreme Court afterwards declined to consider the Johnsons arguments again.
Considerations for Applicators and Producers
The Johnsons’ cases provide some useful guidance for farmers facing a spray drift problem. First, although the Johnsons’ cases involve claims against the cooperative hired to apply chemicals on a neighboring field, it is likely that the Johnsons could have asserted all of the same claims against the neighbors who hired the cooperative, or certainly against a neighbor applying their own chemicals. All farmers who have chemicals applied to their crops have some legal risk of the spray damages another’s crop. And while the Johnsons’ case involved an organic farm, similar claims could be made for damage to crops that simply were not resistant to whatever chemical was used, regardless of whether it is an “organic” crop.
If a farmer can show that crop damage was caused because an applicator did not act reasonably in applying pesticides, such as by failing to follow application instructions or spraying on windy days, the farmer may have a negligence or nuisance claim. However, in many cases, damages will be limited to lost yields or potentially for crops ordered destroyed. Until the Minnesota Supreme Court revisits the Johnson decision, it is unlikely that applicators will be liable for lost revenue because of a lost of organic certification.
In many situations, the cost of a lawsuit may be prohibitive, and the old adage that “an ounce of prevention is worth a pound of cure” is particularly applicable. Organic farmers in particular should maintain buffers around their vulnerable crops to avoid any potential cross contamination and inadvertent spray drift. Further, it may be worth having discussions with neighboring producers, informing them of organic or otherwise vulnerable crops, to let them know and hopefully obtain some cooperation in getting them to spray when the risk of drift is low.
On the other side, applicators, whether commercial or private, should be aware of the potential risks and liability. Simply farming in the conventional way does not insulate pesticide application from liability if it causes harm to a neighbor’s crop. Indeed, even a conventional neighbor that has not adopted the latest herbicide-resistant seeds might be at a serious risk from spray drift if dicamba or glyphosate land on their crops. Thus, applicators should use some reasonable precautions in applying pesticides. Applicators should read and follow label instructions and not spray on windy days if it can be avoided. Applicators may want to learn about their neighbor’s farming practices and work to avoid obvious risks.
Summary
It is unlikely that the prevalence of pesticides in agriculture will significantly diminish in the near term. As the prevalence of organic and other non-conventional farming methods rise, it means farmers of all stripes will be dealing with risks of potential spray drift. And while there are some legal remedies for farmers impacted by spray drift, some preventive practices and communication with neighbors is still probably the best solution.
This information is general in nature and should not be construed as tax or legal advice.
