Johnson v. Paynesville Farmers Union Coop. Oil Co., s. A10–1596

• Decision Date: 25 July 2011
• Docket Number: Nos. A10–1596,A10–2135.,s. A10–1596
• Citation: 802 N.W.2d 383
• Parties: Oluf JOHNSON, et al., Appellants,v.PAYNESVILLE FARMERS UNION COOPERATIVE OIL COMPANY, Respondent.
• Court: Minnesota Court of Appeals

802 N.W.2d 383

Oluf JOHNSON, et al., Appellants,

v.PAYNESVILLE FARMERS UNION COOPERATIVE OIL COMPANY, Respondent.

Nos. A10–1596

A10–2135.

Court of Appeals of Minnesota.

July 25, 2011.

Syllabus by the Court

Chemical pesticide drifting from one farm to another because of errant overspray may constitute trespass.

Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., Plymouth, MN, for appellants.Kevin F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., St. Cloud, MN, for respondent.Considered and decided by ROSS, Presiding Judge; STAUBER, Judge; and HARTEN, Judge.^*

OPINION

ROSS, Judge.

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.¹ 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.

Oluf Johnson complained to the Minnesota Department of Agriculture (MDA) after the 2002 overspray. The MDA investigated and determined that the cooperative illegally sprayed herbicide, causing visually apparent tainting of the Johnsons' crops consistent with drift. Johnson sold his herbicide-tainted crops at lower, nonorganic prices and, as required by federal regulation, removed the tainted field from organic production for three years. The Johnsons settled their losses with the cooperative for that incident. Under that settlement, the cooperative paid damages and agreed to give the Johnsons 24 hours' notice before it sprayed in any adjacent field.

The cooperative oversprayed adjacent fields again in 2005 and the Johnsons again contacted the MDA. The MDA investigated, found drift, and instructed the Johnsons to burn their contaminated alfalfa. In addition to losing the tainted alfalfa, the Johnsons could not grow anything on the burn spot and took the contaminated field out of organic production for three years.

The cooperative again oversprayed in 2007. Johnson again contacted the MDA, and after investigating the MDA required Johnson to plow under a 175–foot wide strip of soybeans running the entire length of his field. He was also told by the state's organic certifying agent that if any pesticide residue was detected, he must take the field out of organic production for three years. The MDA detected pesticide residue, and so Johnson took the field out of organic production.

Johnson again notified the MDA in 2008 about the cooperative's spraying in July and August. He smelled chemicals in the air over his field, leaving him with “cottonmouth, headache and nausea” and his wife a headache and nausea. The MDA investigated and again cited the cooperative for illegally spraying, and the Johnsons again took the affected fields out of organic production for three years. He plowed part of the alfalfa field under because it was “becoming choked with weeds and the alfalfa was very sick and poor.”

In January 2009, the Johnsons sued the cooperative for the 2005 and 2007 incidents. They asked the district court to enjoin the cooperative from spraying within one-half mile of their farm and for damages based on common-law theories of trespass, nuisance, negligence per se, and battery. In June 2009, the district court granted a temporary injunction, prohibiting the cooperative from spraying within one-quarter mile of the Johnsons' farm and requiring it to give notice of its spraying activities in the area.

In April 2010, the Johnsons moved to amend their complaint to include damages from the 2008 incidents.

The district court granted summary judgment in the cooperative's favor and dismissed all of the Johnsons' claims. It concluded that the claims arising from the 2005 overspray are time barred. Regarding the 2007 overspray, the district court dismissed the trespass claim because it concluded that “trespass by particulate matter” is not recognized in Minnesota; it dismissed the nuisance and negligence-per-se claims because the Johnsons presented no evidence that the cooperative's spraying caused damages; and it dismissed the battery claim for lack of evidence of intent. The district court also denied the Johnsons' motion to amend their complaint, reasoning that the claims arising from the 2008 overspray would fail for the same reasons the 2007–overspray claims failed. The district court consequently denied the Johnsons' request for permanent injunctive relief. The Johnsons appeal.

ISSUES

I. Did the district court err by concluding that pesticide drift cannot constitute trespass as a matter of law?

II. Did the district court err by dismissing the Johnsons' nuisance and negligence-per-se claims after concluding that the Johnsons failed to allege that the cooperative caused damages?

III. Did the district court err by refusing to allow the Johnsons to amend their complaint?

IV. Did the district court err by dissolving the temporary injunction and denying permanent injunctive relief?

ANALYSIS

This is an appeal from summary judgment. “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Anderson v. State, Dep't of Natural Res., 693 N.W.2d 181, 186 (Minn.2005). We review both elements de novo. Id.

I

We first address the district court's conclusion that chemical pesticide drift cannot constitute a trespass. No Minnesota case has addressed whether unwanted pesticide drift from a targeted field to an adjacent otherwise organic farming operation can constitute a trespass. We hold that it can.

A trespass claimant must prove two elements: the plaintiff's rightful possession and the defendant's unlawful entry. Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 792–93 (Minn.App.1998), review denied (Minn. Dec. 15, 1998). There is no dispute about the Johnsons' rightful possession of their fields. So the only question is whether the cooperative's unlawful spraying of the chemical pesticide causing it to drift onto the Johnsons' otherwise chemical-free fields constitutes an unlawful entry.

The district court relied on a phrase in our decision in Wendinger and dismissed the trespass claim, but we think the district court read too much into our specific wording in that case. Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn.App.2003), review denied (Minn. Aug. 5, 2003). We decided in Wendinger that “invasive odors” that were emanating onto property from a neighboring confined-pig feeding operation could not be a trespass because the odors were part of transient fumes, which support an action for nuisance but not trespass. We considered but rejected the theory that the fumes were the kind of physical intrusion onto property that could support a trespass claim, even though, scientifically speaking, odorous elements within fumes are indeed physical substances, which we referred to as merely “particulate matter.” Id. at 550. We compared the odors in Wendinger to the “noxious fumes” that were emanating from a wastewater plant in Fagerlie v. City of Willmar, 435 N.W.2d 641, 644 n. 2 (Minn.App.1989). Bad smell, we held, was a nuisance rather than a trespass because, although the essence of the intruding matter was technically a physical substance, it interferes with enjoyment and use of the property but not with its possession. Id.

The district court here focused on our use of the term “particulate matter” in our discussing the nature of odors and, relying on the American Heritage Dictionary definition of “particulate matter,” it concluded that pesticide drift is particulate matter and therefore not actionable as trespass...