Anderson v. STATE, DEPT. OF NAT. RESOURCES, No. A03-679.
| Court | Court of Appeals of Minnesota |
| Writing for the Court | Considered and decided by HARTEN, Presiding ; PETERSON, ; and HUDSON. |
| Citation | 674 N.W.2d 748 |
| Docket Number | No. A03-679. |
| Decision Date | 17 February 2004 |
| Parties | Jeffrey ANDERSON, et al., Appellants, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent, International Paper Co., f/k/a Champion International Corporation, Respondent, and Steven Ellis, Appellant, v. State of Minnesota, Department of Natural Resources, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent. |
674 N.W.2d 748
Jeffrey ANDERSON, et al., Appellants,v.
STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent,
John Doe, Defendant,
Terry Ricks, d/b/a Ricks Aviation, Respondent,
International Paper Co., f/k/a Champion International Corporation, Respondent, and
Steven Ellis, Appellant,
v.
State of Minnesota, Department of Natural Resources, Respondent,
John Doe, Defendant,
Terry Ricks, d/b/a Ricks Aviation, Respondent
No. A03-679.
Court of Appeals of Minnesota.
February 17, 2004.
Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, St.
Craig E. Johnson, Johnson Ramstad & Mottinger, PLLP, Fargo, ND, for respondent Terry Ricks, d/b/a Ricks Aviation.
Alexandra B. Klass, John D. Ostergren, Sara Jane Peterson, Dorsey & Whitney LLP, Minneapolis, MN, for respondent International Paper Company.
Marci L. Iseminger (pro hac vice), Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett, Storm & Jensen, P.C., Sioux City, IA; and Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for amicus curiae Sioux Honey Association Cooperative.
Considered and decided by HARTEN, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.
OPINION
HUDSON, Judge.
Appellants Jeffrey Anderson, James Whitlock, and Steven Ellis appeal from a district court grant of summary judgment in favor of respondents International Paper Company (IP) and the Department of Natural Resources (DNR).
In 1998, appellant beekeepers began noticing high bee mortalities in their beehives located at various properties across central Minnesota. Appellants claim the high bee mortalities were caused by respondents' use of the pesticide Sevin XLR Plus (Sevin) on respondents' hybrid poplar groves located approximately two to five miles from the beehives. Appellants sued respondents for trespass, nuisance, common-law negligence, and negligence per se, seeking an injunction, damages, and attorney fees. Both respondents moved for summary judgment, and the district court granted summary judgment on all claims against respondent IP and on all claims against respondent DNR, except for a portion of appellants' negligence claim. On appeal, appellants argue that the district court erred in dismissing the negligence per se claim, because respondents were negligent per se for spraying Sevin in violation of the product label and Minnesota's Pesticide Control Act, Minn.Stat. §§ 18B.01-18B.39 (2002). Additionally, appellants argue that the district court erred in dismissing the common-law negligence and nuisance claims. We affirm in part and reverse in part.
FACTS
Appellants are beekeepers who have raised bees in central Minnesota for many years. Appellants' beekeeping operations consist of thousands of hives of bees placed in various locations in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. Appellants do not own the land where their beehives are located. Rather, to use the land, appellants give landowners either "thank-you honey" or a small amount of money.
By nature, honeybees forage, feeding on nectar and pollen obtained from blooming flowers and weeds. Flower nectar is converted to honey. In the summer, appellants' bees forage a radius of three to five miles from their hives, pollinating crops and plants in central Minnesota. In the winter, the bees are transported to California, where they pollinate crops such as almonds, cherries, and apples.
Cultivation of hybrid poplars began in west-central Minnesota in the late 1980s. At that time, the cultivation was almost exclusively on Conservation Resource Program
In 1993, the DNR and the Alexandria area Resource Conservation and Development Council developed a proposal for "the Scale Up Project" (the project). One of the major goals of the project was to determine whether it would be economically feasible to grow hybrid poplars as a cash crop for biomass fuel to be used in electricity generation. Another major goal was to determine whether hybrid poplar cultivation would be economically beneficial to area landowners and would stimulate the local economy. Similarly, in 1995, IP developed several groves of hybrid poplar trees in order to provide a consistent source of pulp for its operations. In 1997, the DNR began to notice a significant infestation of cottonwood leaf beetles (CLB) in the project poplar groves. IP began experiencing the same problem in 1998.
Ron Stoffel, a DNR employee who was responsible for the project, determined that it was necessary and appropriate to use pesticides to stop this infestation. Stoffel knew of two types of insecticides that might be effective against the CLB, Bascillus Thuringiensis (BT) and carbaryl, more specifically the commercial product Sevin XLR Plus (Sevin). Sevin is toxic to bees even if they are not directly sprayed with the insecticide, because, after spraying has taken place, and before the insecticide dries, foraging bees pick up pollen poisoned with Sevin and carry it back to the hive. The poison can stay active in the hive for up to a year. The DNR acknowledges that it knew BT was less toxic than Sevin to bees; but BT would only control young CLB larvae and the older CLB larvae would continue to infest the poplars. Thus, Stoffel recommended that the DNR use Sevin.
Accordingly, whenever the DNR found a CLB infestation in a project grove, it contacted the grove owner and asked permission to spray the poplars with Sevin. After the DNR secured permission, the DNR contracted with a local chemical supplier and had the poplar grove sprayed. The DNR claims that because the suppliers were specially trained and licensed to perform their work, it did not supervise the suppliers. Similarly, in the summer of 1998, IP contracted with commercial pesticide applicators to implement IP's insecticide program using both Sevin and BT.
In 1998, appellants noticed that many of their young bees and broods were dying. Appellants soon learned that Sevin was being sprayed on poplars nearby. On July 21, 1999, at the direction of Stoffel, respondent Terry Ricks—a commercial applicator hired by the DNR—sprayed Sevin on land owned by Dale Swanson. The land is located very close to hives owned by appellants Ellis and Whitlock. After the spraying, Ellis checked the hives and found many dead bees. Ricks stated that Stoffel said he knew the bees were present before he ordered the spraying. Stoffel denies this accusation.
On May 29, 2001, the DNR implemented a policy not to apply Sevin on any project groves without first notifying persons owning bee yards registered with the Minnesota Department of Agriculture (MDA). Appellants' bee yards are registered with the MDA.
On March 19, 2002, appellants filed a complaint, asserting claims of trespass,
The district court granted IP's motion for summary judgment in its entirety and granted the DNR's motion for summary judgment, except for the negligence claims by Ellis and Whitlock for the spraying of Sevin on Dale Swanson's hybrid-poplar grove on July 21, 1999. This appeal follows.
ISSUES
I. Did the district court err by granting summary judgment in favor of respondents on appellants' negligence per se claim?
II. Did the district court err by granting summary judgment in favor of respondents on appellants' common-law negligence claim?
III. Did the district court err by finding that whether DNR employee, Ron Stoffel, knew appellants' bee hives were located adjacent to the Swanson property presents a genuine issue of material fact?
IV. Did the district court err by granting respondents' motion for summary judgment on appellants' nuisance claim?
ANALYSIS
I
Appellants first argue that respondents DNR and IP are negligent per se for spraying the pesticide Sevin on their poplar groves in violation of the bee caution on the Sevin label.
The Minnesota Pesticide Control Act is similar to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and prohibits pesticide use "that is inconsistent with a label." Minn.Stat. § 18B.07, subd. 2(a)(1) (2002).
The Sevin label states:
For maximum honey bee hazard reduction, apply from late evening to early morning or when bees are not foraging. Do not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area. However, applications may be made during foraging periods if the beekeeper takes one of the following precautionary measures prior to bee flight activity on the day of treatment: (1) confine the honey bees to the hive by covering the colony or screening the entrance or; (2) locate hives beyond bee flight range from the treated area. Precautionary measures may be discontinued after spray residues have dried.
Appellants claim that respondents violated three sections of the label. First, appellants contend respondents violated the section of the label that states "[f]or maximum honey bee hazard reduction, apply from late evening to early morning or when bees are not foraging." Appellants interpret this language to mean that respondents are prohibited from spraying Sevin between the hours of 9:00 a.m. and 7:00 p.m. if the temperature is above 55 degrees. Appellants...
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Anderson v. STATE, DNR, No. A03-679.
...dismissal of the overspray claim against the DNR and affirmed the dismissal of the remaining claims. Anderson v. Dep't of Natural Res., 674 N.W.2d 748, 760 I. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no......
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Anderson v. State, No. A03-679 (MN 3/3/2005), No. A03-679.
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...initial suspension and the initiation of expulsion proceedings is not an unreasonable delay in violation of the procedural due process 674 N.W.2d 748 guarantees of the United States Constitution. The MDE's decision to affirm I.A.L.'s expulsion is supported by substantial Affirmed. -------- ......
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Anderson v. STATE, DNR, No. A03-679.
...dismissal of the overspray claim against the DNR and affirmed the dismissal of the remaining claims. Anderson v. Dep't of Natural Res., 674 N.W.2d 748, 760 I. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no......
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Anderson v. State, No. A03-679 (MN 3/3/2005), No. A03-679.
...dismissal of the overspray claim against the DNR and affirmed the dismissal of the remaining claims. Anderson v. Dep't of Natural Res., 674 N.W.2d 748, 760 (Minn. App. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that th......
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In re Expulsion of IAL, No. A03-762.
...initial suspension and the initiation of expulsion proceedings is not an unreasonable delay in violation of the procedural due process 674 N.W.2d 748 guarantees of the United States Constitution. The MDE's decision to affirm I.A.L.'s expulsion is supported by substantial Affirmed. -------- ......