The center for diease Ag Law and Taxation at Iowa State University recently published an article summarizing a recent court ruling that pesticide drift may be constituted as trespassing.

In this Minnesota legal case, pesticide drift onto organic crops led to problems between neighbors, and litigation involving a local farm supply cooperative.

The organic producer claimed that the co-op sprayed chemical pesticides that drifted from targeted fields to theirs, preventing the plaintiff from selling his organic crops under a federal non-pesticide “organic” certification.

Federal rules state that organic crops, if tainted by herbicide, must be sold at non-organic prices, and tainted fields must be removed from organic production for 3 years. Products may also not be labeled organic if pesticide levels exceed 5% of the U.S. Environmental Protection Agency’s tolerance for specific residue.

A trial court ruled in favor of the co-op in 2009, saying the plaintiff failed to show evidence of damage, and that the state of Minnesota doesn’t recognize “trespass by particulate matter.” But an appellate court disagreed, citing cases from other jurisdictions and concluding “a trespass action can arise from a chemical pesticide being deposited in discernable and consequential amounts onto one agricultural property as the result of errant overspray…”

The case has been remanded back to trial court. The center says this case is not unlike situations in recent years concerning genetic drift of patented technology via cross-pollination to non-GMO crop fields.

“A unique fact in this case is that the organic farmer operates a 1,500-acre…