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Implications of the Minnesotan Ruling on Pesticide Drift

by emmeline — last modified Aug 08, 2012 02:15 PM

Organic farmers and consumers suffer a big setback when Minnesotan judges reverse a previous ruling that terms pesticide drift as trespass.

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Last week, the Minnesota Supreme Court set organic farming back a few steps when it reversed a previous ruling in favor of organic farmers, and charged that pesticide drift between farms would not be considered as trespass. This is unfortunate news for many Minnesotan organic farmers, whose crops have been damaged and rendered unsellable by pesticide drift. Such victims must now go back through the entire trial process and prove, through litigation, not only that drift occurred, but that negligence, nuisance and economic harm was also involved.

The suit was originally filed by Debra and Oluf Johnson, farmers who underwent a complex organic certification process in the 1990s in order to produce and sell organic crops. They built barriers to separate their farm from other farms, posted signs informing people of their production process, and repeatedly asked the local cooperative, Paynesville Farmers Union, to take precautions when spraying pesticides near their farm. However, their pleas went unheeded for ten years, during which they had to plow under contaminated crops, burn their fields to remain in compliance with organic farming regulations, and take large plots of land out of production. Today, the Johnsons are dealing with heavy monetary blows as a result of the loss of their federal organic certification.Consequently, they sued the co-op- only to have the suit thrown out by the Supreme Court, on the grounds that the court wouldn't recognize trespassing "by intangible... particulate matter."

In an apparent attempt to placate concerned proponents of organic farming, the court further stated that organic farmers subjected to pesticide drift from a third party, who did not intentionally use the chemicals themselves, could still be organically certified if the pesticide levels were below five percent of levels tolerated by the Environmental Protection Agency. Only one justice disagreed with the conclusion, logically citing that "The court's reading makes no sense because no matter who applies the prohibited pesticide and no matter how the pesticide is applied, whether by drift or otherwise, the end product will be no less contaminated and no less in violation of regulations limiting such contamination."

This ruling is disturbing on many levels. Agriculturally, it may be seen as the end to ethical farming. Having the five percent caveat essentially makes organic farming an impossibility when considering the amount of cross-contamination that takes place between fields. By forcing farmers to make the choice between going out of business and producing crops that aren’t organic, the courts are imposing a regulatory ethic of dishonesty.

Arlo H. Vande Vegte, the Johnsons' attorney, explained the situation succinctly- "There will be a bunch of organic farmers who will say, 'I have drift, but you can't decertify me,'" he said. "Which means that there will be more and more pesticides in organic products."

What this means for consumers is that we could very well end up eating – and paying more—for crops that are labeled organic, while we unknowingly ingest pesticides. It will become increasingly difficult to differentiate between “organic” and “sort of organic”; with the state of consumer awareness as frayed as it already is by bureaucratic ‘standards’, we don’t need another regulatory measure further obscuring our right to health and truth.

Change can only be made at the legislative level. It starts with the original ruling-- that pesticide drift is indeed trespass-- being upheld. As the Johnsons continue to fight their way through court, we must hope that the Minnesota judicial court takes note from states such as Colorado and California- and issues an injunction against pesticide drift, marking it as what it really is; trespass, negligence, nuisance, economic destruction, physical harm, all of the above. If Monsanto can successfully sue small farmers for patent infringement caused by its very own genetic drift, it seems grossly unjust that small farmers cannot countersue and win on similar grounds of provable pesticide drift.