Federal regulations specify that “organic” crops, if tainted by herbicide, must be sold at lower, nonorganic prices and that the tainted field must be removed from organic production for three years. To be labeled “organic” the federal organic certification regulations adopted by the National Organic Program (NOP) specify that pesticide levels may not exceed 5% of the EPA’s tolerance for specific residue detected after chemical testing.

In this Minnesota case, pesticide drift onto organic crops led to problems between neighbors, and litigation involving a local co-op.  The organic claimed that a local co-op sprayed chemical pesticides that drifted from targeted fields to theirs, thereby preventing the plaintiff from selling his organic crops under a federal non-pesticide “organic” certification. The plaintiff began converting his conventional crop farming operation to a certified organic operation in the 1990’s. At that time, the plaintiff notified the co-op of the transition and specifically asked the co-op to take precautions to avoid overspray when applying pesticides to adjacent fields. According to the plaintiff, the coop caused pesticide drift and damage to the crop during the 1998, 2002, 2005, 2007, and 2008 crop years. 

On numerous occasions, the plaintiff filed complaints with the Minnesota Department of Agriculture (MDA) against the co-op. The agency investigated the incidences of overspray and determined that the co-op did, indeed, illegally spray causing drift that “tainted” the plaintiffs’ crop.  The first problem was reported in 1998 and the co-op apologized.  Problems again occurred in 2002 and the farmer griped to the MDA.  That resulted in an out-of-court settlement.  Problems again occurred in 2005.  Ultimately, the co-op agreed to pay the farmer damages for lost production and agreed to give the farmers notice 24 hours before spraying adjacent fields. In 2007, the co-op again over-sprayed and the MDA required the farmers plow under the tainted soybeans. Yet again, in 2008, MDA found evidence of overspray and cited the co-op for illegal spraying.

The farmer sued the co-ope for the damage done to the 2005, 2007, and 2008 crops. In June 2009, the trial court granted a temporary injunction in favor of the plaintiff, barring the co-op from spraying within one-half mile of the plaintiff’s farms and requiring the co-op to give notice when spraying “in the area.”  On the merits of the case, however, the trial court granted summary judgment in favor of the co-op and dismissed the plaintiff’s claims of trespass, nuisance, and negligence per se (under the statute). The court held that the claims regarding the 2005 crop were time-barred, the claim of trespass was not allowed because Minnesota does not recognize “trespass by particulate matter,” and the claims of nuisance and negligence per se were dismissed because the plaintiffs failed to present evidence of damage done by the co-op to the organic crop. Importantly, the trial court held that the plaintiffs failed to produce evidence from chemical tests that proved that the chemical residue exceeded the 5 percent tolerance limits established under the federal organic-certification regulations.