Monday, August 01, 2011
Living With Your (Organic) Neighbor
Modern farming practices, large equipment used to coverage vast acreages in a day and high tech chemicals can all combine in a formula for profitability, or in a formula for lawsuits, if some of those chemicals get to locations where they are not welcome. Pesticide drift has come home to roost with many farmers, some of whom have had to compensate urban dwellers when Roundup killed their lawns and gardens or killed a neighbor’s crop that was not glyphosate-resistant. With weather windows that are small, and spray tasks that are large, the envelope if frequently pushed when it comes to application of crop protection chemicals, and horror stories occur.
The problem with spray drift can become an expensive liability, not only when it damages a neighboring field, but if that field is under organic production, the damage can be compounded by several years’ loss of organic productivity. That was the issue in Minnesota when a cooperative oversprayed a member’s acreage in five years out of ten, and the overspray damaged the organic production of an adjacent landowner. Agricultural law specialists Roger McEowen and Erin Herbold-Swalwell at Iowa State University relate the multitude of issues which arose from 1998 to 2008 between Johnson, the organic crop producer, and the Paynesville Farmers Union Cooperative Oil Company.
The initial overspray resulted in an apology in 1998. In 2002, another overspray resulted in an out of court settlement. In 2005, another overspray resulted in compensation for damage to the crop and a promise of a 24 hour notice if they intended to spray in the future. In 2007, another overspray resulted in the Minnesota Department of Agriculture requiring the organic crop be plowed under. In 2008, another overspray resulted in the coop being cited for illegal spraying. The last three incidents were packaged by the lawyers for the organic farmer into a trespass lawsuit against the cooperative, which was dismissed by the trial court. All of the claims for damage were also dismissed contending the organic farmer had not proven that the chemical residue on his crop exceeded the 5% tolerance allowed in USDA standards for the National Organic Program.
The appellate court took a different attitude, more on the side of the organic producer. They ruled Minnesota law could be interpreted in a way that pesticide drift could be considered trespass, as it has been in other states. One particular case involved the use of a crop dusting helicopter, which was declared a wanton disregard for the organic crop. The Minnesota appellate court returned the case to the trial court with the directive that trespass did occur if the pesticide residue could be detected in consequential amounts. The appellate court also ruled the organic farmer had a valid argument that the damages sustained had a three year consequence, since production from that field could not be sold for a 3 year period as organic production, particularly since the Minnesota Department of Agriculture ordered the destruction of an organic soybean field.
The Iowa State law specialists say the court opinion was not completely spelled out, but it did have many issues that will raise important legal questions should it be further appealed to a higher court. They said it will be important to determine liability issues, if the farmers whose fields were being sprayed knew the organic crop was in jeopardy, “It is possible that a strict liability rule could be imposed if the court determines that adjacent conventional (or GMO) crop farmers planted their crops with the knowledge that crop spraying activities could pose a significant risk to an adjacent organic crop.”
The ag law specialists raise another issue of who is trespassing on whom. They rhetorically inquire whether the 1,500 acres of organic crops, surrounded by non-organic crops, creates a trespassing scenario from either side. They ask if the non-organic producers are trespassing and creating liability against the organic producer, or vice versa. The organic farm was established in the 1990’s and were its pesticide restrictions violating the rights of the neighboring farmers who were growing non-organic crops. The specialist ask, “What is viewed as a normal land use in this case, and what is abnormal, and should agriculture be zoned to separate out the organic uses from conventional crops?
Summary:
Organic production farms, scattered throughout conventional farms, can create particular problems with spray drift. An overspray not only affects that one crop, but can prevent that field from being used for organic production for 3 years. Issues of trespass and liability can be complex, and create risk for both the organic and conventional producer. Theoretically, courts could rule that interference could have gone either way.
Posted by Stu Ellis on 08/01 at 12:00 AM | Permalink
Comments
Posted by: Daniel F. Borgen at August 2, 2011 6:06AM
Organic foods remain an area of growth even with the rising cost of grocery items and tougher economic times. Turns out organic cooking is really not that complicated once you know a few basics. In fact, it’s way easier and healthier.
Posted by: Amy Pearson at August 3, 2011 9:09AM
Organic farms should use “no spray” signs around organic and transition fields. Additionally the use of buffers is extremely helpful. A 60’ buffer of trees and scrub will prevent most problems. For conventional farmers…If you read the information for using sprays like Atrazine, you are required by FEDERAL LAW to not overspray, spray on windy days, 48 hours before rain, and maintain a buffer zone. There are several other requirements as well regarding ground water. If a conventional farmer and an organic farmer put their opinions and differences aside, sit down and talk, it is easy to develop a plan that works in favor of both.
Posted by: farmerbrown at September 12, 2011 7:07AM
If farmerbrown wants to answer my question, actually reading the article and the question might enable him to respond with comments relevant to the issue. Mark Twain once said, “those who do not read have no advantage over those who cannot.”
Posted by: Daniel F. Borgen at September 20, 2011 8:08AM
Well Daniel, I read your post and I do want to answer your question. However, there is not only no question marks, but no question in your post either. Ask away, and I’ll be happy to try. Thanks.
Posted by: farmerbrown at September 21, 2011 7:07PM
My organic neighbors’ corn fields are choked with noxious weeds, whose seeds are carried on to my farm by the wind. By their own logic, these “sustainable” farmers are trespassing here, inflicting measurable damage, for which I should be able to seek redress.