6. Developments on whether pesticide drift can be a viable trespass claim. A trespass typically involves some sort of physical invasion of another person’s property. But is a physical invasion present if the only invasion involves pollen drift or particulate matter? Presently, there has not been a case of pollen drift involving GMO crops litigated to an appellate-level court on a trespass claim. However, cases involving comparable situations have been litigated. For example, in Martin v. Reynolds Metal,*17 the defendant was held liable for trespass onto the plaintiff’s property for the emission of microscopic fluoride particles from the defendant’s plant that rendered the plaintiff’s land and drinking water unfit for livestock grazing. Also, another court has found a trespass for the invasion onto the plaintiff’s land of a cloud of silicon dust that had the potential to cause injury.*18 More recently, Texas law has been construed to allow property owners to recover on a trespass claim for contamination caused by the emission of airborne particulates.*19 Likewise, the Minnesota Court of Appeals has held that a trespass action can arise from a chemical pesticide that is deposited in discernible and consequential amounts onto property as a result of errant overspray. While the court noted that odors emanating from the application of chemical pesticides cannot alone constitute a trespass, the court held that a trespass may occur if the odors are joined with the dispersion of substances that drift onto another person’s property and leave deposits which damage crops.*20

On further review by the Minnesota Supreme Court in 2012, the lower court’s decision was reversed. The case was brought by organic farmers against conventional crop farmers that were having their fields sprayed by a third party. Some of the chemical spray drifted onto the organic crops and an organic certifying agent told the plaintiffs that they must destroy 10 acres of soybeans and start over on the three-year process for transferring land into the organic program. However, there was no evidence presented regarding whether the drift reached the EPA threshold of 5 percent before any of these actions were taken. The Minnesota Supreme Court held that a trespass under state law required an intentional and direct physical and tangible entry upon land that someone else possesses. Spray drift, the court reasoned, is particulate matter that does not create a direct physical or tangible entry on the land so it could not constitute a trespass. Nuisance and negligence were appropriate remedies. The court also held that the plaintiffs caused their own damages rather than the defendants’ causing the plaintiffs to violate pesticide regulations governing organic growers. Thus, the pesticide drift was not the cause of the plaintiffs’ damages. Johnson, et al. v. Paynesville Farmers Union Cooperative Oil Co., 817 N.W.2d 693 (Minn. 2012).