817 N.W.2d 693, 704 (Minn. 2012)
Oluf and Debra Johnson are organic farmers in central Minnesota whose fields are certified under the National Organic Program.1 Paynesville Farmers Union Cooperative Oil Company is a member-owned provider that applies pesticides to conventional farm fields adjacent to the Johnsons' property.2
In June 2007 the Johnsons filed a complaint with the Minnesota Department of Agriculture alleging pesticide drift onto one of their transitional soybean fields.3 On June 15, 2007, winds of 9 to 21 miles per hour carried Status (diflufenzopyr and dicamba) and Roundup Original (glyphosate) from the Cooperative's spraying of a neighboring conventional field onto the Johnsons' soybeans.4 MDA testing detected dicamba below detection levels but no diflufenzopyr or glyphosate.5 The MDA nevertheless directed the Johnsons to plow down approximately 10 acres of the crop because of visual damage and the presence of dicamba.6 The Johnsons also notified their certifying agent, the Organic Crop Improvement Association.7 An August 27, 2007 OCIA letter stated that chemical drift may have occurred and that, if contamination were confirmed, the field would have to return to the beginning of the 36-month transition period.8 The Johnsons therefore restarted the three-year transition for that soybean field.9
In July 2008 the Johnsons reported a second incident in which Roundup Power Max and Select Max (glyphosate and clethodim) drifted onto a transitional alfalfa field.10 MDA testing found minimal glyphosate.11 On August 1, 2008, they reported a third incident involving Lorsban Advanced (chlorpyrifos) on the same alfalfa field.12 Testing again showed minimal residue. The MDA concluded that drift from the Cooperative's applications caused both positive results.13 The Johnsons took the alfalfa field out of organic production for an additional three years.14
The Johnsons sued the Cooperative for trespass, nuisance, negligence per se, and battery, claiming economic losses from the three-year transition periods, destruction of the soybean crop, increased weeding and reporting burdens, and adverse health effects to Oluf Johnson.15 They also sought a permanent injunction barring spraying within a half mile of their fields.16 The district court granted summary judgment to the Cooperative on all claims and denied the Johnsons' motion to amend the complaint to add the 2008 incidents.17 The court of appeals reversed in part.18 The Minnesota Supreme Court granted the Cooperative's petition for review.19
Whether the Johnsons' trespass claim fails as a matter of law?20
Yes. The Johnsons alleged that wind carried pesticide particles from the Cooperative's spraying of adjacent conventional fields onto their certified organic fields in 2007 and 2008.24 The established facts show only intangible particulate matter drifted onto the land.25 Minnesota precedent requires a tangible entry to support trespass.26 The Johnsons' claim therefore fails as a matter of law.27
The district court correctly dismissed the trespass claim because pesticide drift does not constitute a tangible invasion of the right to exclusive possession.28
Related opinions on this issue
Justice Page dissented from the majority's holding that particulate matter can never cause a trespass.29 He contended that the traditional distinction between tangible and intangible invasions is no longer sound given advances in science.30 Page noted that some particulate matter, such as dust that settles and damages land, can interfere with exclusive possession.31
He observed that the same conduct may constitute both trespass and nuisance depending on the interest affected.32 Page concluded that pesticide drift may constitute a trespass under some circumstances and would have allowed the suit to go forward to develop the record on whether the specific pesticides caused such interference.33
Whether the Johnsons' nuisance and negligence per se claims based on 7 C.F.R. § 205.202(b) fail as a matter of law?34
Yes. The Johnsons restarted the three-year transition on their soybean field after the 2007 drift and removed the alfalfa field after the 2008 incidents solely because of the certifying agent's interpretation of section 205.202(b).38 The established facts demonstrate that the Cooperative's drift was not an application by the producer.39 The regulation therefore supplies no causation for the claimed economic losses.40
The district court properly granted summary judgment on the nuisance and negligence per se claims that rested on 7 C.F.R. § 205.202(b) because third-party drift cannot trigger the three-year transition requirement.41
Related opinions on this issue
Justice Page also dissented from the majority's reading of 7 C.F.R. § 205.202(b).42 He maintained that the passive phrasing focuses on what the field was exposed to rather than who applied the substance.43 Page argued that the plain language indicates concern with exposure itself, not the identity of the actor or the manner of application.44
He noted that numerous other regulations explicitly govern producer conduct, making the distinct language in section 205.202(b) striking by comparison.45 Page contended that any prohibited residue, regardless of source, would render the product non-organic and that the majority's producer-only limitation renders related compliance provisions superfluous because contamination harms the product equally whether caused by drift or direct application.46 He concluded that the majority's interpretation makes no sense in light of the regulatory scheme's goal of limiting prohibited substances on organic products.47
Whether the district court erred in dismissing the Johnsons' nuisance and negligence per se claims that were not based on 7 C.F.R. § 205.202(b)?48
A nuisance exists when conduct unreasonably interferes with the use and enjoyment of land.49 Negligence per se arises from violation of a statute that substitutes for the ordinary duty of care.50 Both theories remain viable when supported by evidence of actual crop loss, increased weeding, added reporting burdens, or personal health effects.51
Yes. The established facts include the MDA's order to destroy ten acres of soybeans after the 2007 drift because of visible damage and dicamba residue.52 The Johnsons faced added weed-control and record-keeping obligations after both years' incidents.53 Oluf Johnson reported throat and headache symptoms.54 The district court never examined whether these independent allegations created triable issues under nuisance or negligence per se.55
The district court erred by dismissing the non-205.202(b) portions of the nuisance and negligence per se claims without separate analysis of the crop-destruction, inconvenience, and health-effect allegations.56
Whether the district court abused its discretion in denying the Johnsons' motion to amend their complaint to include claims based on the 2008 incidents?57
A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment. Futility analysis must separately consider each legal theory advanced.58
Yes. The 2008 incidents supplied additional facts of minimal glyphosate and chlorpyrifos residues on the alfalfa field after the Cooperative sprayed neighboring fields.59 The MDA attributed those residues to Cooperative drift.60 The Johnsons incurred resulting three-year transition losses plus inconvenience.61 Because the trespass and 205.202(b) theories fail as a matter of law, amendment of those specific claims was futile.62 The district court failed to evaluate the remaining nuisance and negligence per se theories before denying the motion in full.63
Whether the district court erred in dismissing the Johnsons' request for a permanent injunction?66
Yes. The Johnsons sought a permanent injunction barring spraying within one-half mile of their fields on the basis of ongoing nuisance from repeated drift.70 Because the non-205.202(b) nuisance allegations remain viable after the established facts of crop damage, weed proliferation, and health effects, the district court's sole ground for dismissing the injunction request no longer holds.71
The district court erred in dismissing the request for permanent injunctive relief because a viable nuisance claim still supports consideration of that remedy.72