On appeal, the primary issue was whether the trial court improperly dismissed the trespass claim by concluding that pesticide drift cannot constitute a trespass in Minnesota.  Also at issue was whether the trial court erred in dismissing the negligence per se and nuisance claims for lack of evidence.

On the trespass claim, the appellate court noted that the issue of whether unwanted pesticide drift from a targeted field to an adjacent organic field constitutes trespass is an issue of first impression for the Minnesota courts. However, the issue has arisen elsewhere and it is not a new issue. In perhaps the lead case on the issue (which was not referenced by the court), the Supreme Court of Washington affirmed a trial court’s award of damages to an organic farming operation that incurred damages from the drift of aerially applied pesticides.  In Langan v. Valicopters, 567 P.2d 218, Wash. 1977, a crop duster sprayed chemical pesticide on the organic farmer’s land. The appellate court held that there was substantial evidence of damage to the crop, and that the crop duster was strictly liable for damages because crop spraying is an abnormally dangerous activity.  The court also determined that the crop duster’s conduct displayed “wanton” disregard for causing damage to the plaintiff’s organic crop.

In Minnesota, a trespass claimant must show that they had rightful possession of the land and that the defendant’s “entry” onto the land was unlawful. The appellate court cited chemical-drift trespass cases from other jurisdictions to conclude that “a trespass action can arise from a chemical pesticide being deposited in discernable and consequential amounts onto one agricultural property as the result of errant overspray during application directed at another.”  In Minnesota, odors emanating from the application of chemical pesticides, alone, cannot constitute a trespass.  That rule hasn’t changed.  But, in this case, the emanating odors were joined with the dispersion of substances that drifted to the land and left deposits which damaged the crop. Thus, the appellate court remanded the case to the trial court, and instructed the court to uphold the trespass action if the pesticide deposits were “discernable” and in “consequential amounts.”

On the nuisance and negligence per se claims, the appellate court reversed, finding instead that the organic farmer presented “prima facie” evidence of damages caused by the pesticide drift.  The appellate court believed that the district court “inferred” too much from the federal regulations regarding organic crop labeling. Though the defendant’s argument was “persuasive,” the court concluded that the operative regulation (7 C.F.R. §205.202(b)) states that “any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic’ must … have had no prohibited substances… applied to it for a period of three years immediately preceding the harvesting of the crop.” The co-op argued that the presence of “detectable residue” did not necessarily mean that the organic product could not be sold if under the 5 percent safe harbor regulation. The appellate court did not agree with the co-op’s argument. The court held that even though the plaintiffs could not establish 5 percent contamination levels, they still had enough evidence to establish damage to the organic crops over several growing seasons. According to the court, the plaintiffs suffered “substantial inconveniences” as a result of the drift, including MDA orders recommending the destruction of the contaminated crop.