The court’s opinion is relatively short, and is deficient in several respects.  For instance, it is not entirely clear what liability theory applies in such cases.  All the appellate court said was that the trial court erred in concluding that the organic farmer’s trespass claim failed as a matter of law.  But, that doesn’t mean that the farmer will ultimately win the case, and it will be interesting to see if clarification is made of the liability rule utilized in such cases.  Strict liability will probably not be the rule that is utilized.  Courts often refuse to impose a strict liability standard when the plaintiff is abnormally sensitive to the defendant’s conduct at issue.  Organic crop growing activities are quite sensitive to pesticide drift.  But, it is possible that a strict liability rule could be imposed if the court determines that adjacent conventional (or GMO) crop farmers planted their crops with the knowledge that crop spraying activities could pose a significant risk to an adjacent organic crop.  It’s not unlike the situations that have arisen in recent years concerning “genetic drift” of patented technology via cross-pollination to non-GMO crop fields. 

A unique fact in this case is that the organic farmer operates a 1,500-acre farm in the midst of conventional crops.  He is surrounded by non-organic growers.  So, who is trespassing upon whom?  What activity is the nuisance – conventional farming or organic farming?  According to the facts as recited by the court, the farmer made the decision to switch to organic farming in the 1990s.  Although we don’t have enough facts from the court’s opinion to tell, it is probably safe to assume that the surrounding farms were all growing conventional crops at that time.  Did they approve this “non-conforming” use?  Does that impact the outcome of the case or the analysis of the liability rule to be imposed?  Should it?  What is viewed as a normal land use activity in this case?  What is abnormal?  Should ag property be zoned to separate out the organic uses from conventional, from GMO? 

This case has a whole bunch of issues wrapped up in it.  It’s not as simple and straightforward as you may think.  Johnson, et al. v. Paynesville Farmers Union Cooperative Oil Company, No. A10-1596, 2011 Minn. App. LEXIS 92 (Minn. Ct. App. Jul. 25, 2011).

To see original article, please visit Iowa State's Center for Agricultural Law and Taxation.