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Johnson v Paynesville Farmers Union Cooperative Oil Company

Case No. A10-1596 (MN Ct. App., Jul. 25, 2011)

Organic farmers Oluf and Debra Johnson filed a civil suit alleging that the Paynesville Farmers Union Cooperative Oil Company sprayed a chemical pesticide that drifted from pesticide-targeted fields onto theirs, and that this prevented them from selling their crops under a federal nonpesticide “organic” certification. The district court granted summary judgment and dismissed the Johnsons‘ trespass, nuisance, and negligence per se claims. We hold that pesticide drifting from one farm to another may in some circumstances constitute a trespass. And we hold that the federal regulation that prohibits the sale of produce labeled organic if it is tainted with chemicals at levels greater than five percent of the EPA‘s specified limit does not, by reverse implication, automatically authorize the sale of organically labeled produce that does not fail that five-percent test. We therefore reverse the district court‘s dismissal of the Johnsons‘ claims, its denial of the Johnsons‘ motion to amend their complaint to include claims related to other incidents of chemical drift, and its order denying a permanent injunction, and we remand for further proceedings.

FACTS



For the purposes of this appeal from summary judgment, we assume the following facts, which we perceive to be either undisputed or the reasonable inferences of disputed facts construed in the light most favorable to the Johnsons as the nonmoving parties.

In the 1990s, Oluf and Debra Johnson began the three-year process of converting their conventional family farm to a certified-organic farm to realize the higher market prices for organic produce and seeds. Oluf Johnson posted signs at the farm‘s perimeter indicating that it was chemical free, maintained a buffer zone between his organic fields and his chemical-using neighbors‘ farms, and implemented a detailed crop-rotation plan. He also notified commercial pesticide sprayer Paynseville Farmers Union Cooperative Oil Company of the transition. He specifically asked the cooperative to take precautions to avoid overspraying pesticide onto his fields when treating adjacent fields.

Despite the Johnsons‘ requests, in 1998, 2002, 2005, 2007, and 2008, the cooperative sprayed pesticide and herbicide on fields adjacent to theirs in a manner that violated Minnesota law, causing chemicals to land on the Johnsons‘ farm. Oluf Johnson complained to the cooperative after the 1998 incident, and it apologized, promising to “make it right.” But when the Johnsons gave the cooperative an invoice documenting their losses from the overspray, the cooperative refused to pay.
 

 

Judge(s): Kevin G. Ross
Jurisdiction: Minnesota Court of Appeals
Related Categories: Environmental , Property , Torts
 
Court of Appeals Judge(s)
James Harten
Kevin Ross
Larry Stauber, Jr.

 
Appellant Lawyer(s) Appellant Law Firm(s)
Arlo Vegte Arlo H. Vande Vegte, P.A.

 
Appellee Lawyer(s) Appellee Law Firm(s)
Kevin Gray Rajkowski Hansmeier Ltd
Matthew Moehrle Rajkowski Hansmeier Ltd

 

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deposited in discernable and consequential amounts onto one agricultural property as the the district court inferred too much from the regulation. the regulation, as part of 693 n.w.2d at 187. we have affirmed as factually supported a negligence judgment 3 its denial of the johnsons` motion to amend their complaint to include claims related to 2008 overspray would fail for the same reasons the 2007-overspray claims failed. the the certified operation, and that this notice can lead to revocation or suspension of the district court granted summary judgment in the cooperative`s favor and result of errant overspray during application directed at another. the district court section 561.01. this statute has been held to require harm to the plaintiff and wrongful a10-2135 took the affected fields out of organic production for three years. he plowed part of the may seek his remedy in trespass. 369 so. 2d 523, 525, 530 (alaska 1979). and prevent the commingling of organic and nonorganic products and protect organic in sum, we disagree with the district court that chemical pesticide drift cannot, sufficient to establish each essential element. dlh, inc. v. russ, 566 n.w.2d 60, 71 substance, 205.400(f)(1) (emphasis added). reading each provision of the regulation (2010). pesticide labels generally prohibit use when the wind is in excess of five miles intrusion. we hold that a trespass action can arise from a chemical pesticide being emanating onto property from a neighboring confined-pig feeding operation could not be refining co. that arsenic and cadmium particles emitted from a smelting plant and approved organic system plan, the unintentional presence of prohibited substance. their conventional family farm to a certified-organic farm to realize the higher market request. we review the district court`s decision whether to grant an injunction for abuse facts hours` notice before it sprayed in any adjacent field. the operative regulation here requires that [a]ny field or farm parcel from which preventing them from selling their crops on the organic market. as an integrated whole, we therefore deduce that the phrase applied to refers to matter was technically a physical substance, it interferes with enjoyment and use of the trespass as a matter of law? and his chemical-using neighbors` farms, and implemented a detailed crop-rotation plan. cottonmouth, headache and nausea and his wife a headache and nausea. the mda added). the regulation says nothing about what should happen if the residue testing residue detected or unavoidable residual environmental contamination, the agricultural proven. because the regulations and commentary fail to expressly state what happens if contaminating them. and while wafting odors will not affect the composition of the land, permanent injunctive relief? 716 n.w.2d 634, 638 (minn. 2006). (wash. 1985). shows less than five-percent contamination. but the cooperative assumes, and the district file no. 73-cv-09-5042 id. at 80, 629 (emphasis added). johnson again notified the mda in 2008 about the cooperative`s spraying in july practices. however, the `5 percent of epa tolerance' shot onto another`s property constitutes a trespass. citizens for a safe grant v. lone oak we turn to the district court`s denial of the johnsons` motion to amend their prices for organic produce and seeds. oluf johnson posted signs at the farm`s perimeter the johnsons` motion to amend their complaint, reasoning that the claims arising from the freely given when justice so requires. minn. r. civ. p. 15.01. a district court should the cooperative oversprayed adjacent fields again in 2005 and the johnsons again we first address the district court`s conclusion that chemical pesticide drift cannot analysis for trespass, negligence per se, and nuisance failed. because the district court erroneously discussion in wendinger and characterized them as examples of cases in which other which we referred to as merely particulate matter. id. at 550. we compared the odors in adjacent property, minn. stat. 18b.07, subd. 2(b) (2010), and to spray pesticide in a the consequently erroneous holding that the johnsons failed as a matter of law to show here, the district court concluded that the johnsons` amendments adding the 2008 minnesota). the regulations require farmers to develop detailed production and handling caused damages? that the liquid chemicals that the cooperative sprayed into the air from neighboring fields iv. did the district court err by dissolving the temporary injunction and denying other incidents of chemical drift, and its order denying a permanent injunction, and we the cooperative points to section 205.671 to urge a different holding. that section concerning pesticide spray that drifted and killed bees on neighboring land. anderson, organic farmers oluf and debra johnson filed a civil suit alleging that the scientifically speaking, odorous elements within fumes are indeed physical substances, unnecessary to that holding and, as a practical matter, our assessment of them was a bit address the cooperative`s plausible assertion that incidental and negligible overspray the alaska supreme court recognized that lead particulates and sulfoxide can constitute may constitute trespass. after the 2002 overspray. the mda investigated and determined that the cooperative paynesville farmers union cooperative oil company sprayed a chemical pesticide that concluded that the johnsons` 2007 claims cannot withstand summary judgment, the [h]ave had no prohibited substances . . . applied to it for a period of 3 years immediately (permitting recovery for items lost in flooding, replacement of items, and the owner`s their losses from the overspray, the cooperative refused to pay. kind of physical intrusion onto property that could support a trespass claim, even though, state of minnesota dictionary of the english language 1282 (4th ed. 2000) (defining particulate matter as trespass claim because pesticide drifting onto the johnsons` farm may have constituted a ross, judge converted into an actionable claim simply because of an odorous fume`s nature as a alfalfa field under because it was becoming choked with weeds and the alfalfa was very based on the same mistaken legal conclusions. we remand for further proceedings arising held, was a nuisance rather than a trespass because, although the essence of the intruding johnsons presented no evidence that the cooperative`s spraying caused damages; and it and after investigating the mda required johnson to plow under a 175-foot wide strip of the district court relied on a phrase in our decision in wendinger and dismissed therefore erred by concluding that the johnsons` trespass claim fails as a matter of law. law has not recognized trespass by particulate matter); the american heritage nuisance but not trespass. we considered but rejected the theory that the fumes were the of the johnsons` farm and requiring it to give notice of its spraying activities in the area. a trespass claimant must prove two elements: the plaintiff`s rightful possession of an organic product or operation. drift causes a less-than-five-percent contamination to an organic farm, we assume that the s y l l a b u s applications and that applications include even each unintended application and from a targeted field to an adjacent otherwise organic farming operation can constitute a that the application of a prohibited substance includes drift onto a nontargeted field. in minnesota; it dismissed the nuisance and negligence-per-se claims because the drifted from pesticide-targeted fields onto theirs, and that this prevented them from the district court here focused on our use of the term particulate matter in our claims. similarly, the washington supreme court held in bradley v. american smelting and we last address the district court`s denial of the johnsons` permanent injunction sick and poor. category of physical substances that can never constitute a trespass. our holding in evidence of damages caused by the pesticide drift. it reasoned, [a]s there is no evidence physical substance, is of no controlling force here. unlike the plaintiffs in wendinger, the 14 (minn. 1997). this showing is made if it includes evidence that would allow a reasonable johnsons do not claim trespass based on transient odors. instead, they primarily complain nuisance, negligence per se, and battery. in june 2009, the district court granted a 205.201; see also 205.272 (requiring the farmer to implement measures necessary to facts, which we perceive to be either undisputed or the reasonable inferences of disputed applied to does not include unintended residual drift from overspray, is belied by the we reverse the district court`s summary judgment order dismissing the johnsons` nuisance); anderson, 693 n.w.2d 18991 (requiring damages for a negligence-per-se property but not with its possession. id. products as organically produced, even if the level of court concluded, that it is automatically cleared for sale as organic. we recognize that the 205.662(a), (c) (providing that if an investigation by a certifying agent reveals any and the defendant`s unlawful entry. special force ministries v. wcco television, 584 reversed and remanded. in court of appeals request for a permanent injunction. in doing so, it found that there was no harm to the a10-1596 burn their contaminated alfalfa. in addition to losing the tainted alfalfa, the johnsons sportsmen's club, inc., 624 n.w.2d 796, 805 (minn. app. 2001). temporary injunction, prohibiting the cooperative from spraying within one-quarter mile other arguments for or against its issuance. deposits. and both those cases and this one, unlike wendinger, involve a substantive percent test. we therefore reverse the district court`s dismissal of the johnsons` claims, wendinger, rejecting the contention that an inactionable odor-based trespass claim is trespass. we hold that it can. 6 granting summary judgment without addressing them. complaint? permit amendments unless it finds that the adverse party would be prejudiced. fabio v. alone can constitute trespass in minnesota, but our citing to borland and bradley was paynesville farmers union cooperative oil company, national organic program, 65 fed. reg. 80,548, 80,556 (dec. 21, 2000) (codified at 7 violating pesticide laws, which make it illegal to apply a pesticide resulting in damage to automatically authorize the sale of organically labeled produce that does not fail that five- from the 2008 incidents. explained that the intentional throwing of [an object] upon [another`s] property would the presence of a detectable residue of a product of excluded level above which an agricultural product cannot be sold as chemical pesticide drifting from one farm to another because of errant overspray v. nelson, 404 n.w.2d 332, 334 (minn. app. 1987). and we have held that errant bullets johnsons, we reverse the dismissal of the johnsons` nuisance and negligence-per-se 9 practices that prevent the commingling of organic and nonorganic foods. 7 c.f.r. trespass, reasoning that if, as a result of the defendant`s [smelting] operation, the overspray are time barred. regarding the 2007 overspray, the district court dismissed the iv 13 for the purposes of this appeal from summary judgment, we assume the following selling their crops under a federal nonpesticide organic certification. the district court landing on the plaintiffs` land could also constitute a trespass. 709 p.2d 782, 78690 against a crop duster after its negligent spraying of herbicides resulted in chemical drift substances that were applied to their field during the cooperative`s overspraying, established [under the federal organic-certification regulations], produce from these planning, and record keeping. they asserted separately that some of the chemicals, 17 judge. organic production for three years. the mda detected pesticide residue, and so johnson trespass. we reverse the dismissal of their nuisance and negligence-per-se claims because adrift. both those cases and this one, unlike wendinger, involved the dispersion of factfinder to conclude that the element has been proven. schroeder v. st. louis cnty., 708 incidents. they asked the district court to enjoin the cooperative from spraying within contain chemicals designed to affect the land, can interfere with possession. we need not considered and decided by ross, presiding judge; stauber, judge; and harten, because of its nature, constitute a trespass. the errant dispersion of pesticides, which although neither wendinger nor other minnesota cases have directly addressed ii. did the district court err by dismissing the johnsons` nuisance and negligence-per- ross, judge retired judge of the minnesota court of appeals, serving by appointment pursuant to federal regulations in nop, 7 c.f.r. 205, as the organic food production law of discussing the nature of odors and, relying on the american heritage dictionary because the district court erred by finding no damages were shown by the standard cannot be used to automatically qualify agricultural trespass claim because it concluded that trespass by particulate matter is not recognized 2 consistent with drift. johnson sold his herbicide-tainted crops at lower, nonorganic prices contacted the mda. the mda investigated, found drift, and instructed the johnsons to the johnsons sought an injunction under the nuisance statute, minnesota statutes product must not be sold, labeled, or represented as organically produced. (emphasis organic foods production act of 1990, 7 u.s.c. 65016523, and the associated that chemical residue tests performed on the plants . . . exceeded the 5% tolerance limits stearns county district court consideration of the injunction on remand, offering no opinion about the merit of any negligence per se claims. we hold that pesticide drifting from one farm to another may in could not grow anything on the burn spot and took the contaminated field out of organic drifted, landed, and remained on the johnsons` organic crops in detectable form, court erroneously rejected their claims for lack of damages on the ground that, by virtue cooperative sprayed pesticide and herbicide on fields adjacent to theirs in a manner that heart of the johnsons` claim for damages; they argue that the pesticides were prohibited the cooperative again oversprayed in 2007. johnson again contacted the mda, unintentional application of pesticide. in january 2009, the johnsons sued the cooperative for the 2005 and 2007 10 johnsons` claims on the merits, it vacated that injunction and denied the johnsons` motion. rosenberg, 685 n.w.2d at 332. implement a standard comparable to current industry appellants, oluf johnson, et al., damages, an essential element of their nuisance and negligence-per-se claims. see minn. onto the johnsons` otherwise chemical-free fields constitutes an unlawful entry. presumably fertilizers, enhanced weed growth. they asserted that they had to remove illegally sprayed herbicide, causing visually apparent tainting of the johnsons` crops has been established to: (1) satisfy consumer expectations that we recognize that we expressly distinguished borland and bradley in our any damages. and we reverse the denial of the johnsons` motion to amend their express language of the regulation. the phrase applied to is not defined in the prohibits the sale of produce labeled organic if it is tainted with chemicals at levels excluded methods and takes reasonable steps to avoid contact to conclude that chemical pesticide drift can constitute a trespass. the supreme court has o p i n i o n fagerlie v. city of willmar, 435 n.w.2d 641, 644 n.2 (minn. app. 1989). bad smell, we he also notified commercial pesticide sprayer paynseville farmers union cooperative in that case. wendinger v. forst farms, inc., 662 n.w.2d 546 (minn. app. 2003), review facts construed in the light most favorable to the johnsons as the nonmoving parties. the johnsons appeal. granted summary judgment and dismissed the johnsons` trespass, nuisance, and injunction fails. we therefore reverse the denial without prejudice for further 12 oluf johnson dismissed the battery claim for lack of evidence of intent. the district court also denied produce that meets strict nop standards may be certified as organic. 7 c.f.r. complaint and of their request for a permanent injunction because both denials were respondent. under that settlement, the cooperative paid damages and agreed to give the johnsons 24 denied (minn. aug. 5, 2003). we decided in wendinger that invasive odors that were bellomo, 504 n.w.2d 758, 761 (minn. 1993). but the district court should deny a motion premises and observed that the duty leads to liability [being] regularly imposed in cases we hold that the phrase applied to in section 205.202(b) includes drift as an than 5 percent of the environmental protection agency`s tolerance for the specific renovations, llc, 685 n.w.2d 320, 332 (minn. 2004). a party may amend a responsive certifying agent that if any pesticide residue was detected, he must take the field out of 5 some circumstances constitute a trespass. and we hold that the federal regulation that noncompliance with nop regulations, a written notice of noncompliance shall be sent to organic agricultural products will contain minimal chemical there is no genuine issue of material fact and the moving party is entitled to judgment as a minn. const. art. vi, 10. reversed and remanded 11 a trespass because the odors were part of transient fumes, which support an action for i. did the district court err by concluding that pesticide drift cannot constitute this is an appeal from summary judgment. summary judgment is appropriate district court erred by refusing to allow the johnsons to amend their complaint to add the 2005). we review both elements de novo. id. time in coping with the water problems caused by nuisance), the district court erred by court. they alleged that the drift has caused substantial inconveniences because they 15 se claims after concluding that the johnsons failed to allege that the cooperative despite the johnsons` requests, in 1998, 2002, 2005, 2007, and 2008, the assumption has some support from the following general commentary on the regulation: issues of there having been no finding of five-percent contamination, no damages could be contact with a potential prohibited substance. this standard 8 the dismissal resulted from a misreading of the five-percent-contaminant regulation and (emphasis added), and they also refer to the [a]pplication, including drift, of a prohibited exclusive possessory interest by causing substantial damage to the res, then the plaintiff the source of the injury arising out of the alleged trespass. regulations refer to the unintended application of a prohibited substance, 205.202(c) per hour. the mda found that the cooperative repeatedly applied pesticide on windy we next address the district court`s conclusion that the johnsons failed to allege harvested crops are intended to be sold, labeled, or represented as organic` must . . . especially when considered an atmospheric pollutant). but nothing in our wendinger analysis indicates that we intended the term particulate matter to define a unique exclusively on the predicate findings that the johnsons failed to allege damages. because 662 n.w.2d at 550. our decision in wendinger rightly rejected the theory that odors therefore not actionable as trespass under minnesota law. see id. (holding that minnesota n.w.2d 789, 79293 (minn. app. 1998), review denied (minn. dec. 15, 1998). there is definition of particulate matter, it concluded that pesticide drift is particulate matter and iii. did the district court err by refusing to allow the johnsons to amend their the organic-certification regulation scheme of the national organic program (nop), some fields from production. and they alleged that the overspray forced them to destroy manner inconsistent with a label or labeling, minn. stat. 18b.07, subd. 2(a)(1) i design, it descends and clings to soil or plants, killing organisms. ii certification (emphasis added)). this regulation. as long as an organic operation has not used of discretion. highview, 323 n.w.2d at 73. and we rely on the district court`s findings we add that the johnsons alleged other damages not considered by the district greater than five percent of the epa`s specified limit does not, by reverse implication, the district court concluded that the johnsons failed to present prima facie the district court initially issued a temporary injunction, but after dismissing the the 5 percent of epa tolerance` standard is considered a residues and (2) respond to the organic industry`s request to during agricultural application is inevitable, and therefore not actionable. we address those rest on erroneous conclusions of law, the district court`s reason for denying the whether the cooperative`s unlawful spraying of the chemical pesticide causing it to drift certifying agent has the discretion to decertify or not decertify the field. see c.f.r. arlo h. vande vegte, arlo h. vande vegte, p.a., plymouth, minnesota (for appellants) polluting substance is deposited upon the plaintiff`s property, thus interfering with his the cooperative was cited four times by the minnesota department of agriculture for below 5 percent of the epa tolerance for the respective preceding harvest of the crop. 205.202(b) (emphasis added). this regulation is at the d e c i s i o n limits the circumstances in which farmers may label and sell produce as organic. only to avoid overspraying pesticide onto his fields when treating adjacent fields. in the 1990s, oluf and debra johnson began the three-year process of converting the more specific holdings in chemical-drift trespass cases in other jurisdictions 16 complained to the cooperative after the 1998 incident, and it apologized, promising to when the evidence, viewed in the light most favorable to the nonmoving party, shows that complaint to add claims arising out of the 2008 drift. we review the district court`s denial 7 matter of law. anderson v. state dep't of natural res., 693 n.w.2d 181, 186 (minn. from target fields onto a neighboring field, damaging crops. red river spray service, inc. some of their crops. because these identify at least potential bases to recover damages, the issue, the reasoning underlying decisions in similar neighbor-liability cases leads us methods alone does not necessarily constitute a violation of 1 claims would not withstand summary judgment for the same reasons that the 2007 claims 2003), review denied (minn. nov. 25, 2003). organic, regardless of how the product may have come into no dispute about the johnsons` rightful possession of their fields. so the only question is for three years. the johnsons settled their losses with the cooperative for that incident. see highview n. apartments v. cnty. of ramsey, 323 n.w.2d 65, 73 n.6 (minn. 1982) products from contact with prohibited substances). 4 regulations, but we hold that it implicitly includes unintentional pesticide drift. the the organic-certification regulation de novo. see weston v. mcwilliams & assocs. inc., constitute a trespass. no minnesota case has addressed whether unwanted pesticide drift the argument is persuasive. the cooperative`s counter position, which is that and, as required by federal regulation, removed the tainted field from organic production states only that if residue testing detects prohibited substances at levels that are greater stat. 561.01 (2010) (stating that a nuisance action may be brought by any person safe harbor for drift ignores this additional, more specific commentary: oluf johnson complained to the minnesota department of agriculture (mda) has also recognized that a landowner owes a general duty to adjoining or nearby are required to report the contamination and it affects their crop rotations, organic-farm days. in april 2010, the johnsons moved to amend their complaint to include damages pleading that has been served if that party has leave of the court, and leave shall be of a party`s motion to amend a complaint for abuse of discretion. rosenberg v. heritage 205.100, .102, .300 (2011); see also minn. stat. 31.925 (2010) (adopting the federal conduct by the defendant. highview, 323 n.w.2d at 70. the products of excluded methods should not affect the status plants could have been sold as organic.` we review the district court`s interpretation of unless they are clearly erroneous. haley v. forcelle, 669 n.w.2d 48, 55 (minn. app. johnsons and no wrongful conduct by the cooperative. these findings were based investigated and again cited the cooperative for illegally spraying, and the johnsons again one-half mile of their farm and for damages based on common-law theories of trespass, chemical residues detected on an agricultural product is wendinger to the noxious fumes that were emanating from a wastewater plant in constitute a trespass. victor v. sell, 301 minn. 309, 313, 222 n.w.2d 337, 340 (1974). it whose property is injuriously affected or whose personal enjoyment is lessened by the to amend a complaint when the proposed claim could not survive a summary-judgment substances that entered into and settled onto land in discernable and allegedly damaging (for respondent) c.f.r. 205). but interpreting the regulation to allow for an automatic under-five-percent vs. are consistent with our holding today. for example, in borland v. sanders lead co., inc., jurisdictions, unlike minnesota, had recognized trespass actions by particulate matter. remand for further proceedings. district court consequently denied the johnsons` request for permanent injunctive relief. n.w.2d 497, 507 (minn. 2006). oil company of the transition. he specifically asked the cooperative to take precautions iii from the reversal. and august. he smelled chemicals in the air over his field, leaving him with soybeans running the entire length of his field. he was also told by the state`s organic production for three years. invasion in which the deposited thing--not merely vaporous and dissipating odors--are kevin f. gray, matthew w. moehrle, rajkowski hansmeier, ltd., st. cloud, minnesota violated minnesota law, causing chemicals to land on the johnsons` farm.1 filed july 25, 2011 indicating that it was chemical free, maintained a buffer zone between his organic fields only the allegations here, which go beyond inconsequential overspray or odor-related [m]aterial suspended in the air in the form of minute solid particles or liquid droplets, dismissed all of the johnsons` claims. it concluded that the claims arising from the 2005 the trespass claim, but we think the district court read too much into our specific wording we do not speculate as to the johnsons` damages, but we hold that the district with the products of excluded methods as detailed in their took the field out of organic production. a liquid chemical pesticide or herbicide being sprayed for agricultural purposes will; by claims related to the 2008 overspray. action). to defeat a summary judgment motion, the opposing party must make a showing make it right. but when the johnsons gave the cooperative an invoice documenting


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