No.

_________ ================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------OLUF JOHNSON AND DEBRA JOHNSON, Petitioners, v. PAYNESVILLE FARMERS UNION COOPERATIVE OIL COMPANY, Respondent. -----------------------------------------------------------------On Petition For A Writ Of Certiorari To The Supreme Court For The State Of Minnesota -----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI -----------------------------------------------------------------LYNN A. HAYES Counsel of Record AMANDA N. HEYMAN FARMERS’ LEGAL ACTION GROUP, INCORPORATED 360 North Robert Street, Suite 500 Saint Paul, Minnesota 55101 651.223.5400 lhayes@flaginc.org Counsel for Petitioners, Oluf Johnson and Debra Johnson ================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i QUESTION PRESENTED The Organic Foods Production Act of 1990 (“OFPA”) and its implementing regulations (the National Organic Program, or “NOP”) created uniform standards for a national and international market in U.S. Department of Agriculture (“USDA”)-certified “organic” agricultural products worth in excess of $31 billion. The state of Minnesota has adopted the entirety of the OFPA and NOP as its organic farming law. The federal prohibition against the use of chemicals commonly used in conventional agricultural production is the keystone of the organic program. At issue here is the interpretation of an NOP rule that supports the integrity of USDA-certified organic farmland by prohibiting contact with synthetic pesticides and herbicides. Whether section 6504(2) of the Organic Foods Production Act of 1990 and its implementing regulation, 7 C.F.R. 205.202(b), allow a certifying agent accredited under the National Organic Program discretion to decertify a U.S. Department of Agriculturecertified organic field due to the drift of prohibited substances (e.g., chemical pesticides and herbicides) caused by a third party.

ii TABLE OF CONTENTS Page Question Presented ............................................. Table of Authorities ............................................. Opinions Below .................................................... Jurisdiction .......................................................... Statutory & Regulatory Provisions Involved ...... Statement ............................................................ A. The Statutory Framework of the OFPA and the Regulatory Framework of the National Organic Program ........................ i v 1 2 2 3

5

B. C.

Factual Background .................................. 10 The Proceedings Below .............................. 12 1. Initial Proceedings .............................. 12 2. The Minnesota Court of Appeals Reverses the Trial Court’s Interpretation of Section 205.202(b), and Holds that Certifying Agents Have Discretion to Decertify Based on Third-Party Drift .... 12 3. The Minnesota Supreme Court Reverses the Minnesota Court of Appeals’ Interpretation of Section 205.202(b) .... 13

D.

The Judgment of the Minnesota Supreme Court Is Final Under Section 1257(a) and Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .... 16

Reasons for Granting the Petition....................... 18

iii TABLE OF CONTENTS – Continued Page A. The Decision of the Minnesota Supreme Court Cannot Be Reconciled With Plain Statutory Language and Structure ........... 18 1. The Minnesota Supreme Court’s Interpretation of Section 205.202(b) Subverts the Canons of Statutory Interpretation ...................................... 18 2. The Minnesota Supreme Court’s Emphasis on Testing Contravenes the NOP’s Process-Based Model, Mischaracterizes the Purpose of Residue Testing, and Leads to a Faulty Nullification Analysis .................................. 22 3. The Court Misidentified the Focus of the OFPA ............................................. 26 B. The Minnesota Supreme Court Has Erroneously Decided an Important Issue of Federal Administrative Law in a Manner that Disrupts the Orderly Administration of a National Program and Threatens Adverse Economic Consequences to MultiState Actors in the over $31 Billion Organic Marketplace ..................................... 28 1. The Erroneous Minnesota Ruling Disrupts the Orderly Administration of the National Organic Program ........ 29

iv TABLE OF CONTENTS – Continued Page 2. The Erroneous Minnesota Ruling Encourages Fruitless Appeals and Threatens Adverse Economic Consequences for NOP Accredited Certifying Agents .................................................. 32 3. The Erroneous Minnesota Ruling Discourages Organic Production by Creating Difficult Economic Conditions for Organic Producers and Handlers ..... 35 C. The Minnesota Supreme Court Relied Heavily on Inapplicable Authority that Pertains to Genetic Drift – Not Pesticide Drift ........................................................... 37

Conclusion............................................................ 40 APPENDIX Minnesota Supreme Court Order (August 1, 2012) ................................................................. App. 1 Minnesota Court of Appeals Order (July 25, 2011) ............................................................... App. 52 District Court of Stearns County, State of Minnesota Order (November 4, 2010) ........... App. 72 District Court of Stearns County, State of Minnesota Order (July 16, 2010)................... App. 74

v TABLE OF AUTHORITIES Page CASES American Export Lines, Inc. v. Alvez, 446 U.S. 274 (1980) ................................................................16 Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig. v. Aurora Organic Dairy, 621 F.3d 781 (8th Cir. 2010) ................ passim Brady v. Maryland, 373 U.S. 83 (1963) .....................16 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .....16, 17 Dean v. United States, 556 U.S. 568 (2009) ...............19 Mass. Indep. Certification, Inc. v. Johanns, 486 F. Supp. 2d 105 (D. Mass. 2007) ...............................8 Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753 (Minn. 2010) .....................................................19 Washington State Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003) ........................................................17 STATUTES 7 U.S.C. §§ 6501-6523 ..................................................5 7 U.S.C. § 6501(1) .......................................................27 7 U.S.C. § 6501(2) .................................................27, 30 7 U.S.C. § 6501(3) .......................................................27 7 U.S.C. § 6502(3) .........................................................8 7 U.S.C. § 6503(d) .....................................................7, 8 7 U.S.C. § 6504 .........................................................2, 3

vi TABLE OF AUTHORITIES – Continued Page 7 U.S.C. § 6505(a)(1)(A) ................................................6 7 U.S.C. § 6511(c)(2) .............................................15, 23 7 U.S.C. §§ 6515-16 ......................................................8 7 U.S.C. § 6520(a)(2) ...................................................32 7 U.S.C. § 6521(a) .........................................................6 28 U.S.C. § 1257(a) .................................................2, 16 Minn. Stat. § 31.925 (2010) ..........................................9 RULES 7 C.F.R. §§ 205.1-205.699 .............................................6 7 C.F.R. § 205.2.......................................................7, 37 7 C.F.R. § 205.100 .........................................................7 7 C.F.R. § 205.100-199 ...............................................38 7 C.F.R. § 205.102 .........................................................7 7 C.F.R. § 205.105 .........................................................3 7 C.F.R. § 205.200 .........................................................7 7 C.F.R. § 205.201 .........................................................7 7 C.F.R. § 205.202 ............................................... passim 7 C.F.R. § 205.202(b) .......................................... passim 7 C.F.R. § 205.202(c) ...............................................3, 21 7 C.F.R. § 205.203-206 ...............................................20 7 C.F.R. § 205.400 ...................................................7, 21 7 C.F.R. §§ 205.400-205.406 .........................................8

vii TABLE OF AUTHORITIES – Continued Page 7 C.F.R. §§ 205.500-205.510 .........................................8 7 C.F.R. §§ 205.600-607 ................................................7 7 C.F.R. § 205.662(a) ..................................................13 7 C.F.R. § 205.662(c) ...................................................13 7 C.F.R. § 205.671 ............................................... passim 65 Fed. Reg. 80,548 (Dec. 21, 2000) (codified at 7 C.F.R. Part 205) (“NOP Final Rule”)........... passim 65 Fed. Reg. at 80,549 (Dec. 21, 2000) .......................39 65 Fed. Reg. at 80,551-558 (Dec. 21, 2000)................38 65 Fed. Reg. at 80,556 (Dec. 21, 2000) ........... 37, 38, 39 65 Fed. Reg. at 80,558-575 (Dec. 21, 2000)................39 65 Fed. Reg. at 80,559 (Dec. 21, 2000) .......................20 65 Fed. Reg. at 80,568 (Dec. 21, 2000) .......................26 65 Fed. Reg. at 80,587 (Dec. 21, 2000) .......................24 65 Fed. Reg. at 80,588 (Dec. 21, 2000) .......................21 65 Fed. Reg. at 80,629 (Dec. 21, 2000) .................25, 26 65 Fed. Reg. at 80,630 (Dec. 21, 2000) .................22, 26 65 Fed. Reg. at 80,668 (Dec. 21, 2000) .......................31 77 Fed. Reg. 67,239, 67,239-242 (Nov. 9, 2012) (to be codified at 7 C.F.R. Part 205) .......................23 77 Fed. Reg. at 67,239 (Nov. 9, 2012) ........................35 77 Fed. Reg. at 67,241 (Nov. 9, 2012) ........................35

viii TABLE OF AUTHORITIES – Continued Page OTHER AUTHORITIES Carolyn Dimitri, et al., U.S. Dep’t of Agric., Econ. Research Serv., The Role of Contracts in the Organic Supply Chain: 2004 and 2007 (2010) .......................................................................36 Council of Economic Advisers, White House Rural Council, and U.S. Department of Agriculture, Strengthening Rural Communities: Lessons from a Growing Farm Economy (2012) .........................................................................4 Eugene Gressman, et al., Supreme Court Practice (9th ed. 2007) ............................................16 Miles McEvoy, U.S. Dep’t of Agric., Nat’l Organic Program, Organic Integrity, Past, Present, and Future (2011) ...........................................31 USDA AMS, NOP, Celebrating 10 Years of USDA Organic (2012) ...........................................8, 9 USDA AMS, NOP, List of USDA-Authorized Organic Certifying Agents by State of Operation (2012) ...........................................................8, 34 USDA AMS, NOP, Memo to Accredited Certifying Agents – Exporting USDA Organic Products to the EU (2012) ................................................6 USDA AMS, NOP, Policy Memorandum 10-3, Attestation Statement for Agricultural Products That Meet the Terms of the U.S.Canadian Equivalence Arrangement (2010) ............6

ix TABLE OF AUTHORITIES – Continued Page USDA NASS, 2011 Certified Organic Production Survey (2012) .....................................................9 USDA, Nat’l Sustainable Agric. Info. Serv., Documentation Forms for Organic Crop Producers (2011) ...........................................................30

1 PETITION FOR A WRIT OF CERTIORARI Petitioners Oluf Johnson and Debra Johnson respectfully petition for a writ of certiorari to review the judgment of the Minnesota Supreme Court in this case.
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OPINIONS BELOW The opinion of the Minnesota Supreme Court reversing the Minnesota Court of Appeals’ interpretation of the National Organic Program (“NOP”) regulation at Title 7 C.F.R. 205.202(b) is reported at 817 N.W.2d 693 (Minn. 2012) and reprinted in the Appendix (“App.”) at 1-51. The order of the Minnesota Court of Appeals reversing the trial court’s interpretation of Title 7 C.F.R. 205.202(b) is reported at 802 N.W.2d 383 (Minn. App. 2011) and reprinted at App. 52-71. The July 16, 2010 order of the trial court granting Respondent summary judgment on all claims is unreported and reprinted at App. 74-76. The November 4, 2010 order of the trial court denying Petitioners’ claim for permanent injunctive relief and vacating a temporary injunction against Respondent is unreported and reprinted at App. 72-73.
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2 JURISDICTION The Minnesota Supreme Court entered judgment on August 1, 2012. On October 17, 2012, Justice Alito extended the time for filing a petition for a writ of certiorari to November 29, 2012. This Court’s jurisdiction rests on Title 28 U.S.C. § 1257(a).
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STATUTORY & REGULATORY PROVISIONS INVOLVED Title 7 U.S.C. § 6504 (2006) of the Organic Foods Production Act of 1990 provides: National standards for organic production To be sold or labeled as an organically produced agricultural product under this chapter, an agricultural product shall – (1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided in this chapter; (2) except as otherwise provided in this chapter and excluding livestock, not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products; and (3) be produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent.

3 In implementing Title 7 U.S.C. § 6504, Title 7 C.F.R. § 205.202 (2012) of the National Organic Program provides in relevant part: Land requirements. Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as “organic,” must: * * *

(b) Have had no prohibited substances, as listed in § 205.105, applied to it for a period of 3 years immediately preceding harvest of the crop; and (c) Have distinct, defined boundaries and buffer zones such as runoff diversions to prevent the unintended application of a prohibited substance to the crop or contact with a prohibited substance applied to adjoining land that is not under organic management.
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STATEMENT This case arises from a Minnesota Supreme Court ruling that impermissibly clashes with the statutory language and framework of the Organic Foods Production Act of 1990 (“OFPA”) and the regulatory language and framework of its implementing regulations, the National Organic Program (“NOP”). The OFPA created an organic “certification program designed to effect national standards and to eliminate the preexisting havoc for the industry caused by

4 balkanized state regulations.” Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig. v. Aurora Organic Dairy, 621 F.3d 781, 793 (8th Cir. 2010) (quotation omitted). The misguided Minnesota Supreme Court decision disrupts the orderly and uniform administration of a finely-calibrated national and international organic certification program governing the more than $31 billion national market 1 in organic food products. In an erroneous decision based on a misunderstanding of the NOP, the Minnesota Supreme Court held that USDA accredited certifying agents do not have the discretion to decertify organic farm fields that have been contaminated by third-party application of synthetic chemical substances prohibited by the NOP (such as pesticides and herbicides) unless testing reveals chemical residues at certain levels. This decision creates a diminished standard for toxic chemical contamination of USDA-certified organic products in Minnesota vis-à-vis other states and foreign nations. The OFPA’s focus on producing food without the chemicals that inundate conventional agriculture is one of the cornerstones of the statutory regime, and the reason domestic and foreign consumers
See Council of Economic Advisers, White House Rural Council, and U.S. Department of Agriculture, Strengthening Rural Communities: Lessons from a Growing Farm Economy 4 (2012) (“The retail value of the organic industry grew to $31.4 billion in 2011, up from $21.1 billion in 2008. The number of operations certified organic grew by 1,109 – or more than 6% – between 2009 and 2011.”)
1

5 spend billions on organic products annually. Consequently, the Minnesota Supreme Court decision disrupts the efficient administration of an important national program and threatens adverse economic consequences for multi-state certifying agents, organic farmers and organic handlers. Furthermore, instead of recognizing and understanding the purposeful complexity of the national organic regime, the Minnesota court ignored proper rules of statutory construction, crafted a holding that disrupts the NOP’s process-based system, failed to properly identify the focus of the OFPA, and mistakenly relied on inapplicable sources of law – resulting in an interpretation that cannot be reconciled with the OFPA and NOP’s plain statutory language and framework. In so doing, the Minnesota court created a conflict between federal and Minnesota law. The harmful effects of this conflict will reverberate throughout national and foreign organic markets and regulatory systems unless the Court grants certiorari to resolve the conflict. A. The Statutory Framework of the OFPA and the Regulatory Framework of the National Organic Program When Congress enacted the OFPA in 1990, one of its main objectives was to replace the patchwork of existing state regulations with a national standard defining organic food. See 7 U.S.C. §§ 6501-6523; Aurora, 621 F.3d at 788, 794. The OFPA requires certified organic farmers and handlers to follow strict

6 production standards, and authorized USDA to propose regulations implementing Congress’s plan. See 7 U.S.C. §§ 6505(a)(1)(A), 6521(a). USDA ultimately adopted the NOP in 2000 after considering almost 41,000 public comments on the proposed organic rule. See 7 C.F.R. §§ 205.1-205.699; see generally National Organic Program, 65 Fed. Reg. 80,548 (Dec. 21, 2000) (codified at 7 C.F.R. Part 205) (hereinafter “NOP Final Rule”). The NOP is meant to “facilitate domestic and international marketing of fresh and processed food that is organically produced and assure consumers that such products meet consistent, uniform standards.” NOP Final Rule at 65 Fed. Reg. 80,548. Currently, the U.S. government has international equivalence agreements in place with Canada and the European Union regarding the production and sale of USDA certified organic products. See U.S. Dep’t of Agric., Agric. Mktg. Serv., Nat’l Organic Program, Policy Memorandum 10-3, Attestation Statement for Agricultural Products That Meet the Terms of the U.S.-Canadian Equivalence Arrangement (2010); see also U.S. Dep’t of Agric., Agric. Mktg. Serv., Nat’l Organic Program, Memo to Accredited Certifying Agents – Exporting USDA Organic Products to the EU (2012). Under the OFPA and the NOP regulations, organic farmers and handlers (e.g., processors, wholesalers and retailers) cannot market crops or food products as “organic” and receive the premium price paid for organic products unless they are certified to NOP standards by an accredited certifying agent. See

7 7 U.S.C. § 6503(d) (2006); see also 7 C.F.R. §§ 205.100, 205.102 (2012). In order to obtain USDA organic certification, farmers and their farmland – and handlers and their facilities – must meet exacting NOP standards. See 7 C.F.R. §§ 205.200, 205.400 (2012). A majority of the organic certification requirements involve a ban on contact between “prohibited substances” and organic food or farmland. See, e.g., §§ 205.201, 205.202, 205.203, 205.206, 205.207, 205.237, 205.238, 205.270, 205.271, 205.272 (2012). Under the NOP, “prohibited substances” are a collection of mostly synthetic chemical substances that may not be used in organic production. See 7 C.F.R. §§ 205.2 (definitions), 205.600-607 (2012). Among numerous other certification standards, land from which crops are intended to be sold as organic must “[h]ave had no prohibited substances * * * applied to it for a period of 3 years immediately preceding harvest of the crop[.]” 7 C.F.R. § 205.202(b) (2012). The NOP’s prohibition on pesticides and herbicides used in chemical-laden conventional food production is the main reason millions of consumers are willing to pay more for organic products. Thus, this prohibition is not just one of the organic certification requirements; it is a cornerstone of the USDA organic program. The OFPA empowered USDA-accredited certifying agents to ensure certified organic products meet USDA organic standards. However, as one court noted regarding NOP, “[t]he regulatory scheme at issue is

8 somewhat unusual.” Mass. Indep. Certification, Inc. v. Johanns, 486 F. Supp. 2d 105, 109-10 (D. Mass. 2007). Rather than creating a new network of USDA certifying agents, Congress decided to preserve the existing network of private organic certification programs, allowing those third parties to become USDA accredited and certify organic operations in the field. See 7 U.S.C. §§ 6502(3), 6503(d), 6515-16; see also 7 C.F.R. §§ 205.400-205.406, 205.500-205.510. The certifying agents decide whether to certify a particular business – whether that business may or may not sell or label their products as organic. See Aurora, 621 F.3d at 795. A certifying agency is simultaneously a “quasigovernmental” actor in the regulatory scheme and “a private economic entity with a separate and distinct economic and reputational interest.” See Mass. Indep. Certification, Inc., 486 F. Supp. 2d at 117. There are over 100 USDA-accredited certifying agents, and most are allowed to certify farms and businesses anywhere in the world. U.S. Dep’t of Agric., Agric. Mktg. Serv., Nat’l Organic Program, List of USDA-Authorized Organic Certifying Agents by State of Operation (2012). The organic certifier in this case, Nebraska-based Organic Crop Improvement Association (“OCIA”), is one such accredited certifying agent. App. 7. Worldwide, there are over 28,300 USDA-certified organic operations across 133 countries. See U.S. Dep’t of Agric., Agric. Mktg. Serv., Nat’l Organic Program, Celebrating 10 Years of USDA Organic (2012). Over 17,200 organic farms and processing facilities in the United States are certified

9 to the USDA organic standards, fueling a $31.4 billion U.S. organic industry. Id. There are over 9,000 certified organic farms and over 3.6 million acres of certified organic farmland in the United States. See U.S. Dep’t of Agric., Nat’l Agric. Statistics Serv., 2011 Certified Organic Production Survey (2012). Minnesota ranks fourth in the nation in the number of certified organic acres, and seventh in the number of certified organic farms. Id. As the commentary to the NOP Final Rule makes clear, the NOP is carefully calibrated to balance competing interests within the organic marketplace, and each regulatory provision is in place for a very particular purpose. See generally, NOP Final Rule, 65 Fed. Reg. at 80,548-684. Minnesota has adopted the OFPA and the NOP in their entirety as “the organic food production law and rules” for the state. Minn. Stat. § 31.925 (2010) (entitled “Uniformity with Federal Law”). The NOP regulation at issue in this case is 7 C.F.R. § 205.202(b), which requires that land used in organic production must have had no prohibited substances – such as chemical pesticides and herbicides – “applied to it for a period of 3 years immediately preceding harvest of the crop[.]” 7 C.F.R. § 205.202(b) (2012). Another NOP regulation that the Minnesota courts used to interpret section 205.202(b) is a rule prohibiting products from being sold under the USDA organic label if residue testing is conducted that

10 shows “prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency’s tolerance for the specific residue detected[.]” 7 C.F.R. § 205.671 (2012). B. Factual Background In the 1990s, Minnesota farmers Oluf and Debra Johnson (the “Johnsons”) began the three-year process of converting their conventional family farm to a USDA-certified organic farm. In accordance with NOP regulations, Oluf Johnson posted signs at the farm’s perimeter indicating that it was chemical free and maintained a buffer zone between his organic fields and his chemical-using neighbor farms. He also notified commercial pesticide sprayer, Respondent Paynesville Farmers Union Cooperative Oil Company (“Paynesville”) of the organic transition, and specifically asked Paynesville to take precautions to avoid over-spraying pesticide onto his fields when treating adjacent fields. App. 54. Despite the Johnsons’ requests, in 1998, 2002, 2005, 2007 and 2008, Paynesville applied pesticide and herbicide on fields adjacent to the Johnsons’ in a manner that repeatedly caused chemicals to land on the Johnsons’ fields and cause damage. The Paynesville chemical applications also violated Minnesota laws prohibiting the application of pesticides in violation of federally-required pesticide labels. The Minnesota Department of Agriculture (“MDA”) has cited Paynesville four times for violating Minnesota

11 pesticide application laws in connection with the Johnsons’ fields. The Johnsons settled the 1998 and 2002 incidents with Paynesville; this case involves only the overspray applications in 2005, 2007, and 2008. App. 54-57. In 2005, MDA investigated alleged Paynesville overspray, found chemical drift, and instructed the Johnsons to burn contaminated organic alfalfa. In accordance with 7 C.F.R. § 205.202(b), the Johnsons also took the contaminated field out of organic production for three years. App. 55-56. When Paynesville oversprayed again in 2007, MDA investigated and required the Johnsons to plow under a 175-foot wide strip of organic soybeans running the entire field length. OCIA, the organic certifier, told Oluf Johnson that if any pesticide residue was detected he must take the entire field out of organic production for three years. In accordance with section 205.202(b), Johnson took the field out of organic production for three years after MDA detected pesticide residue. App. 56. In 2008, MDA again cited Paynesville for illegal spraying that contaminated the Johnsons’ organic fields. Once more, in accordance with section 205.202(b), the Johnsons took affected alfalfa fields out of organic production for three years. App. 56.

12 C. The Proceedings Below 1. Initial proceedings In 2009, the Johnsons filed a civil suit against Respondent Paynesville in Minnesota state court seeking damages for the decertification of their organic fields due to Paynesville’s 2005 and 2007 overspray incidents. Later, in 2010, the Johnsons unsuccessfully sought to amend their complaint to add the 2008 incident. The Johnsons sought damages for, among other things, the loss of three years’ worth of opportunities to sell the crops growing on each decertified field at the higher organic market price. App. 56-57. In July 2010, the trial court granted summary judgment to Paynesville and dismissed all of the Johnsons’ claims. App. 57, 74-76. The court did not accept that section 205.202(b) required the Johnsons’ fields to be taken out of organic production due to contamination by overspray. Instead, the court held that pesticide drift caused by a third party cannot cause decertification unless residue tests exceed allowable limits under the NOP. App. 64. 2. The Minnesota Court of Appeals Reverses the Trial Court’s Interpretation of Section 205.202(b), and Holds that Certifying Agents Have Discretion to Decertify Based on Third-Party Drift The Minnesota Court of Appeals reversed the trial court as to its interpretation of section 205.202(b). In its ruling, the Court of Appeals held

13 that the phrase “applied to” in that regulation includes unintentional third-party pesticide drift. The holding rejected Paynesville’s position that “applied to” does not include unintended residual drift from overspray, noting that Paynesville’s argument was “belied by the express language of the regulation.” App. 65. Additionally, the Court of Appeals stated that the trial court “inferred too much” from the 5 percent rule, and reasoned that “because the [NOP] regulations and commentary [to the NOP Final Rule] fail to expressly state what happens if drift causes a lessthan-five-percent contamination to an organic farm, we assume that the certifying agent has the discretion to decertify or not decertify the field.” App. 64, 67-68 (citing 7 C.F.R. §§ 205.662(a), (c) (2012) (any noncompliance uncovered by a certifier investigation can lead to revocation or suspension of an operation’s organic certification)). 3. The Minnesota Supreme Court Reverses the Minnesota Court of Appeals’ Interpretation of Section 205.202(b) The Minnesota Supreme Court reversed the Court of Appeals’ interpretation of section § 205.202(b), holding that the regulation unambiguously governs only an intentional application of prohibited substances by an organic producer onto fields from which

14 organic products will be harvested. App. 31, 37.2 Accordingly, the court held that section 205.202(b) does not regulate third-party application of prohibited substances – whether intentional or unintentional – to fields used in organic production. App. 37. In interpreting the plain language of section 205.202(b), the Minnesota Supreme Court majority opinion stated: “When we read the phrase ‘applied to it’ in 7 C.F.R. § 205.202(b), within the context of OFPA’s focus on regulating the practices of the producer of organic products, we conclude that this phrase unambiguously regulates behavior by the producer.” App. 31. In dissent, Justice Alan Page responded that this conclusion by the majority “flies in the face of our rules of construction as well as common sense,” in part because the court is not permitted to add words to a regulation. App. 49. Justice Page also contrasted the “striking” use of the passive voice in section 205.202(b) with a number of NOP provisions that expressly regulate “producers and handlers.” App. 50.

When considering whether the trial court correctly dismissed the Johnsons’ nuisance and negligence per se claims based on section 205.202(b), the Minnesota Supreme Court held that the question was not one of damages, but one of causation. App. 38. Therefore, the court stated, the question of tort liability based on section 205.202(b) was a question of law. App. 39.

2

15 The Minnesota Supreme Court decision also held that the Johnsons’ interpretation of section 205.202(b) to allow certifying agents discretion to decertify based on pesticide drift caused by third-party application cannot stand because it would nullify the five percent testing standard in section 205.671: As the Johnsons read section 205.202(b), any amount of pesticide, no matter how it came into contact with the field, would require that the field be taken out of organic production for 3 years. There would accordingly be no organic crops left that would be covered under section 205.671 of the NOP or 7 U.S.C. § 6511(c)(2). And the OFPA and NOP would not need a provision allowing crops with minimum levels of pesticide on them (i.e., less than 5 percent) to be sold as organic because such crops would necessarily have been harvested from fields ineligible for organic production. We are not to adopt an interpretation that renders one section of the regulatory scheme a nullity. App. 35. With respect to the majority’s nullification reasoning, Justice Page concluded in dissent, “The court’s reading makes no sense because no matter who applies the prohibited pesticide and no matter how the pesticide is applied, by drift or otherwise, the end product will be no less contaminated and no less in violation of regulations limiting such contamination.” App. 51. The Minnesota Supreme Court also opined that the OFPA and NOP have a “focus on regulating the

16 practices of producers,” and used that conclusion as the statutory context supporting its holding that the specific regulation at issue does not cover pesticide or herbicide contamination caused by anyone but an organic producer. App. 30-31. D. The Judgment of the Minnesota Supreme Court Is Final Under Section 1257(a) and Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) The August 1, 2012 judgment of the Minnesota Supreme Court is final with respect to the federal issue in this case, the Court’s interpretation of 7 C.F.R. § 205.202(b). See 28 U.S.C. § 1257(a) (2006); see Cox Broad. Corp. v. Cohn, 420 U.S. 469, 480 (1975). This case falls squarely within the second Cox category regarding finality. Under Cox and its progeny, judgments are final in cases “in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of the future state court proceedings.” 420 U.S. at 480; see also Eugene Gressman, et al., Supreme Court Practice 164-65 (9th ed. 2007) (citing numerous applications of the theory behind the second Cox category, including Brady v. Maryland, 373 U.S. 83, 85 n.1 (1963) (subsequent trial on sole issue of punishment could not affect federal issue resolved on appeal from a criminal conviction); American Export Lines, Inc. v. Alvez, 446 U.S. 274, 278-79 n.7 (1980) (finality of separate maritime loss-of-society claim not affected by nonfinality of other claims not yet tried, in

17 reliance on second Cox category); Washington State Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 381 n.5 (2003) (remand to consider scope and basis for awarding attorneys’ fees did not interfere with Court’s jurisdiction)). The Minnesota Supreme Court’s interpretation of section 205.202(b) is separable and distinct from any subsequent proceedings that may occur in this case, and will survive and require decision regardless of the outcome of the few state issues that remain outstanding. The Minnesota court itself makes clear that its decision on the federal issue will be absolutely unaffected and undiluted by the remaining proceedings, expressly stating that the only issues remaining for subsequent adjudication are the “nuisance and negligence per se claims to the extent those claims are not based on 7 C.F.R. § 205.202(b)” and the “Johnsons’ motion to amend their complaint to include claims for the 2008 incidents to the extent those claims are not based on trespass or 7 C.F.R. § 205.202(b).” App. 44-45 (emphasis added). Additionally, as in Cox, delay of U.S. Supreme Court review until after trial on the state issues unrelated to section 205.202(b) will leave USDA, NOP, organic certifying agents, organic producers, organic handlers, and millions of consumers in the United States and abroad “operating in the shadow” of an erroneous rule of law. See Cox, 420 U.S. at 48586 (finding the finality requirement satisfied, noting that delay of review until after trial would adversely affect federal interests). The Minnesota Supreme

18 Court’s misguided ruling disrupts the essential uniformity of the organic marketing regime with respect to an issue at the heart of the USDA organic food certification program – toxic chemical contamination.
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REASONS FOR GRANTING THE PETITION A. The Decision of the Minnesota Supreme Court Cannot Be Reconciled With Plain Statutory Language and Structure The Minnesota Supreme Court’s ruling displayed a fundamental lack of understanding of the finelycalibrated OFPA and NOP regimes created to implement the nationalization of the organic label. Instead of recognizing and understanding the intricacies of the regime, the Minnesota court mangled proper rules of statutory construction, ignored the processbased nature of organic certification, and conducted a superficial “general understanding” analysis that failed to properly identify the focus of the OFPA. 1. The Minnesota Supreme Court’s Interpretation of Section 205.202(b) Subverts the Canons of Statutory Interpretation The Minnesota Supreme Court’s interpretation of the plain language of section 205.202(b) defies customary rules of statutory interpretation. The rules of statutory interpretation do not permit courts to add words to a regulation whether the words were

19 “purposefully omitted or inadvertently overlooked.” App. 49 (citing Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 760 (Minn. 2010)). As Justice Page points out in his dissent: First, the language of section 205.202(b) is silent with respect to who applied the prohibited substances. The plain language of the phrase – “Any field or farm parcel . . . must: . . . (b) Have had no prohibited substances . . . applied to it” – indicates that the concern is what the land in question was exposed to, not how it was exposed, why it was exposed or who caused the exposure. Moreover, use of the passive voice generally indicates the focus of the language is “whether something happened – not how or why it happened.” App. 49-50 (citing Dean v. United States, 556 U.S. 568, 572 (2009)) (emphasis added). Further, as Justice Page also points out, section 205.202(b) is “striking in comparison” to numerous other NOP regulations that explicitly govern the behavior of producers or handlers by actually employing the words “producer or handler.” App. 50 (citing 7 C.F.R. §§ 205.200, 205.201(a), 205.203(a), 205.203(b), 205.203(c) (2012)). In contrast, the passive voice language of section 205.202(b) focuses on a characteristic of the farmland and does not refer to a producer or handler. The commentary to the NOP Final Rule also illuminates how the NOP rules distinguish between portions of the NOP that regulate producer behavior

20 and portions that regulate characteristics of farmland. Under the heading, “Crop Production,” the commentary states: Any field or farm parcel used to produce an organic crop must have been managed in accordance with the requirements in sections 205.203 through 205.206 and have had no prohibited substances applied to it for at least 3 years prior to harvest of the crop. Such fields and farm parcels must also have distinct, defined boundaries and buffer zones to prevent contact with the land or crop by prohibited substances applied to adjoining land. NOP Final Rule, 65 Fed. Reg. at 80,559 (emphasis added). The first clause of the first sentence in the passage above regulates action by a producer, who must “manage” the field or farm parcel in accordance with the NOP Subpart C regulations 205.203-206. However, the italicized second clause of the first sentence refers to a characteristic of land – having had no prohibited substances applied to it (as required by section 205.202(b)). Stating an additional requirement, the second sentence is again directed to a characteristic of land and directly implicates the Johnsons’ situation – that is, contact with prohibited substances “applied to” adjoining land. The passage excerpted above is only one part of the NOP Final Rule making clear that the words “applied to” in 205.202(b) are not limited to producer application of prohibited substances. The commentary to the NOP Final Rule also states, “Certified

21 operations are required to immediately notify the certifying agent concerning any application, including drift, of a prohibited substance to any field, production unit, site, facility, livestock, or product that is part of the organic operation.” NOP Final Rule, 65 Fed. Reg. at 80,588 (emphasis added). Provisions of the NOP itself also make clear that prohibited substance application includes drift. Section 205.202(c) requires land to “[h]ave distinct, defined boundaries and buffer zones such as runoff diversions to prevent the unintended application of a prohibited substance to the crop or contact with a prohibited substance applied to adjoining land that is not under organic management.” 7 C.F.R. § 205.202(c) (2012) (emphasis added). And section 205.400 states as a general requirement for organic certification: A person seeking to receive or maintain organic certification under the regulations in this part must: * * * (f) Immediately notify the certifying agent concerning any: (1) Application, including drift, of a prohibited substance to any field, production unit, site, facility, livestock, or product that is part of an operation[.] 7 C.F.R. § 205.400 (2012). Responding to Justice Page’s dissent, the Minnesota Supreme Court majority weakly posits that “application” must include “intentionality,” and that therefore only the organic producer could apply prohibited substances in violation of 205.202(b).

22 App. 31-32, n.13. However, both producers and third parties can have intentionality with respect to application. Paynesville obviously intended to apply the pesticides that drifted – they were in fact hired to do so. Thus, as the Minnesota Supreme Court impermissibly adds words to a regulation set forth in the passive voice and ignores statutory context in interpreting the phrase “applied to” in section 205.202(b), the decision is erroneous and should be overturned. 2. The Minnesota Supreme Court’s Emphasis on Testing Contravenes the NOP’s Process-Based Model, Mischaracterizes the Purpose of Residue Testing, and Leads to a Faulty Nullification Analysis Although the Minnesota Supreme Court correctly recognizes the fact that the NOP is a “process-based” regime, the court crafted a testing-based holding that requires certifying agents to provide test results in order to decertify an organic field based on thirdparty drift. This testing-based model of certification contravenes the express federal intent to create a process-based organic certification system that uses testing as only one tool in the multi-faceted certification process. See NOP Final Rule, 65 Fed. Reg. at 80,630 (“[T]he national organic standards, including provisions governing prohibited substances, are based on the method of production, not the content of the product. The primary purpose of the residue testing

23 approach described in this final rule, then, is to provide an additional tool . . . to use in monitoring and ensuring compliance with the NOP.”) (emphasis added). The Minnesota Supreme Court contends that allowing certifying agents discretion to decertify an organic field due to third-party drift under section 205.202(b), in the absence of test results meeting the five percent residue standard, would nullify the testing requirement of section 202.671 because “[t]here would accordingly be no organic crops left that would be covered under section 205.671 of the NOP or 7 U.S.C § 6511(c)(2).” App. 35. However, the OFPA and NOP’s process-based frameworks anticipate that section 205.202(b) will function in the absence of testing. As discussed on page 35, infra, some 95 percent of organic operations are not intended to undergo residue testing in a given year. See National Organic Program, Periodic Residue Testing, 77 Fed. Reg. 67,239, 67,239-242 (Nov. 9, 2012) (to be codified at 7 C.F.R. Part 205) (hereinafter “Periodic Residue Testing Rule”). Thus, as part of the NOP process of certification, the NOP gives certifying agents discretion to decertify an organic field based on obvious pesticide drift without the expense and trouble of testing.3 As happened in the Johnsons’ case,
Note that testing creates only a seductive illusion of certainty in agricultural situations. Test samples from discrete portions of enormous farm fields (often the size of multiple NFL football fields) may not show the true picture of chemical (Continued on following page)
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24 drift is often obvious due to visually-apparent crop damage, smell, and negative health effects (such as headaches and nausea). App. 7, 42, 55, 56. The Minnesota Supreme Court’s nullification analysis is further undercut by the fact that the two provisions identified by the court can simultaneously operate together. To illustrate how OCIA and the Johnsons’ interpretation of section 205.202(b) can happily coexist with section 205.671, consider that section 205.671 has much greater range than section 205.202(b) because section 205.671 reaches far beyond the farm field. Section 205.671 regulates agricultural products, not agricultural land. Compare 7 C.F.R. § 205.202(b) (2012) (appears under heading “Land requirements”); 7 C.F.R. § 205.671 (2012) (regulating “agricultural products”). Therefore, although an organic field could be entirely free of chemicals, agricultural products harvested from that field could become contaminated at any moment after they leave the field, including during storage (perhaps from a contaminated container), transit (contaminated truck bed or tarp), or processing (inadvertent commingling with conventional products or contaminated machinery.) This type of contamination is not infrequent, as the commentary to the NOP Final Rule notes. See, e.g., NOP Final Rule, 65 Fed.
dispersion, and testing procedures cannot always perfectly detect low level residues. The reality of testing uncertainty is just one of the many reasons that NOP contemplates decertification in the absence of testing.

25 Reg. at 80,587 (discussing how to “prevent exposure to prohibited substances that would lead to subsequent loss of the shipment as an organic product.”). If organic farmland is decertified under section 205.202(b), of course the products of that land cannot be sold as organic and the testing provision would not come into play with respect to those products. It is important to understand, however, that decertification due to drift will often apply to only part of an operation. In the Johnsons’ case, only the fields contaminated by drift were decertified, leaving other certified organic fields intact. Accordingly, the products of the Johnsons’ other certified organic fields could certainly become subject to the testing requirement of section 205.671 at a later date due to non-drift contamination. In other words, section 205.202(b)’s non-existent powers outside the farm field with respect to harvested agricultural products stand in sharp contrast to section 205.671’s farreaching powers, which stretch from farm to table.4

Additionally, section 205.671’s testing requirement is meant to be a tool “to assist in monitoring for illegal use violations.” See NOP Final Rule, 65 Fed. Reg. at 80,629. The NOP drafters intended testing to help protect against bad actors who might covertly use chemical pesticides or herbicides to more easily and cheaply produce fraudulent organic agricultural products. This concern is part of the reason why the NOP gives certifiers the power (but does not require them) to “conduct an investigation of the certified operation to determine the cause of the prohibited substance,” and why intentional application of a prohibited substance by a producer gives rise to more serious (Continued on following page)

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26 Finally, the thrust of section 205.202(b) cannot be aimed at residue levels regulated by section 205.671 because residues of most prohibited substances disperse long before three years elapse. This common sense notion is supported by the commentary on the NOP Final Rule, Subpart C, which states: “The statutory prohibition on the application of a prohibited substance is 3 years, and this requirement is contained in section 205.202(b). This prohibition restricts the application of a prohibited substance, not its residual activity.” NOP Final Rule, 65 Fed. Reg. at 80,568 (emphasis added). Moreover, there is no method to speed up the three-year organic transition process by obtaining test results showing farmland is free of prohibited substances. Thus, to the extent the Minnesota Supreme Court’s decision subverts the OFPA and NOP’s process-based model with an outsize emphasis on residue testing in its interpretation of section 205.202(b), the decision contravenes Congressional intent and should be overturned. 3. The Court Misidentified the Focus of the OFPA The Minnesota Supreme Court incorrectly identified the OFPA framework’s focus as a “focus on regulating the practices of producers.” App. 30-33, 37. In
consequences than mere presence of prohibited substances. See 7 C.F.R. § 205.671 (2012) (investigation); see also NOP Final Rule, 65 Fed. Reg. at 80,629-630 (consequences).

27 reality, the OFPA’s focus is on maintaining a uniform national system of organic production. Regulating producers is just one of the mechanisms the OFPA uses to create a uniform national organic certification program. To arrive at this conclusion, one need only look at the purposes articulated in the OFPA itself. The first purpose is “to establish national standards governing the marketing of certain agricultural products as organically produced products[.]” 7 U.S.C. § 6501(1) (2006); see also Aurora, 621 F.3d at 796 (stating the OFPA’s first purpose would be “deeply undermined” if state court systems adopt “conflicting interpretations of the same provisions of the OFPA and NOP.”). The OFPA’s second purpose also highlights its focus on uniformity, stating its intent “to assure consumers that organically produced products meet a consistent standard[.]” See 7 U.S.C. § 6501(2) (2006). Similarly, the OFPA’s third purpose supports a focus on creating a uniform national market, declaring the intent “to facilitate interstate commerce in fresh and processed food that is organically produced.” See 7 U.S.C. § 6501(3) (2006). Notwithstanding this clear Congressional intent, the Minnesota Supreme Court decision relies upon a faulty understanding of the focus of OFPA to support its erroneous interpretation of section 205.202(b). See App. 37. The court held: When the regulation is read in the context of the NOP and the OFPA as a whole and given

28 the statutory scheme’s focus on regulating the practices of producers, we conclude that section 205.202(b) does not cover [Paynesville’s] pesticide drift. Rather, this section governs an organic producer’s intentional application of prohibited substances onto fields from which organic products will be harvested. App. 37 (emphasis added). As this misinformed holding heavily relies on a flawed understanding of the OFPA, it should be overturned. B. The Minnesota Supreme Court Has Erroneously Decided an Important Issue of Federal Administrative Law in a Manner that Disrupts the Orderly Administration of a National Program and Threatens Adverse Economic Consequences to MultiState Actors in the over $31 Billion Organic Marketplace Congress enacted the OFPA to bring uniformity and strength to a splintered organic agricultural marketplace. The Minnesota Supreme Court’s flawed ruling strikes at the heart of this purpose by: 1) disrupting the uniform administration of a thriving national and international program focused on producing food free of toxic chemicals; 2) encouraging fruitless appeals of NOP certifying agent decisions that will waste money, strain government resources, and require unnecessary testing; and 3) discouraging organic production by creating difficult economic conditions for organic producers and handlers.

29 1. The Erroneous Minnesota Ruling Disrupts the Orderly Administration of the National Organic Program In creating conflict within a harmonious national regulatory framework, the Minnesota Supreme Court’s interpretation of section 205.202(b) is an obstacle to OFPA’s congressional objectives as implemented by the NOP. As the U.S. Court of Appeals for the Eighth Circuit recognized with respect to the uniform administration of the OFPA: [A]ny added [state enforcement mechanism] comes at the cost of the diminution of consistent standards, as not only different legal interpretations, but also different enforcement strategies and priorities could further fragment the uniform requirements. The natural result of these differences in interpretation and enforcement would be an increase in the “consumer confusion and troubled interstate commerce” that characterized the period before the OFPA, which stands in direct conflict to the OFPA’s third purpose of “facilitat[ing] interstate commerce in fresh and processed food that is organically produced.” Aurora, 621 F.3d 781 at 796-97 (citations omitted). Today, with the completion of long-awaited Canadian and European Union organic equivalence agreements, the uniform administration of both an interstate and international regulatory scheme is threatened by the clash between federal law and the Minnesota ruling. In Minnesota, USDA-certified “organic” now means

30 something different – and diminished – compared to the rest of the nation and the world. Without test results meeting the NOP’s five percent residue standard, Minnesota law no longer allows decertification due to pesticide drift from third-party pesticide application. Organic integrity is therefore weakened. In contrast, organic operations outside Minnesota must meet a higher standard – certifying agents have discretion to order fields contaminated with any amount of pesticides or herbicides to be taken out of organic production in order to rigorously maintain the integrity of the organic label. See U.S. Dep’t of Agric., Nat’l Sustainable Agric. Info. Serv., Documentation Forms for Organic Crop Producers C24 (2011) (sample neighbor notification letter stating, “If chemical drift is found on my organic crops or fields, I may be required to wait up to three years before using these fields for organic production. This could also cause loss of my organic certification and/or loss of the organic premium for crops grown on affected fields.”). Clearly, then, the Minnesota Supreme Court’s flawed interpretation of section 205.202(b) interferes with one of the cornerstones of the organic certification program – the focus on producing food free of toxic chemicals like synthetic pesticides and herbicides. Although a three-year decertification for thirdparty pesticide drift may seem like an overly harsh remedy to the Minnesota Supreme Court, it is an important tool allowing certifying agents to ensure the consistent organic integrity and corresponding consumer trust that the OFPA intended. See 7 U.S.C.

31 § 6501(2) (2006) (“It is the purpose of this title to assure consumers that organically produced products meet a consistent standard.”). Further, the Minnesota Supreme Court declined even to solicit the views of USDA before interpreting the NOP regulation in a manner that will seriously dilute the efficacy of the federal organic program. Consumer trust is easily damaged, and the Minnesota ruling chips away at this precious and essential resource. As the commentary to the NOP Final Rule points out, “Organic products cannot be distinguished from conventionally produced products by sight inspection, and consumers rely on verification methods such as certification to ensure that organic claims are true.” See NOP Final Rule, 65 Fed. Reg. at 80,668. USDA, NOP, and accredited certifying agents – in partnership with farmers, wholesalers, retailers and others – have carefully undertaken years of expensive effort to build the USDA organic brand. See generally, Miles McEvoy, U.S. Dep’t of Agric., Nat’l Organic Program, Organic Integrity, Past, Present, and Future (2011) (presentation by NOP Deputy Administrator). Granting certiorari in this case presents this Court with the opportunity send a clear signal to lower courts that NOP and its accredited certifying agents’ painstaking administration of OFPA’s national certification regime should not be carelessly disrupted.

32 2. The Erroneous Minnesota Ruling Encourages Fruitless Appeals and Threatens Adverse Economic Consequences for NOP Accredited Certifying Agents The Minnesota decision expressly promotes fruitless appeals of decertification decisions that will drain agency, judicial, certifying agent, and producer resources. In its opinion, the Minnesota Supreme Court blamed the certifying agent’s “erroneous interpretation of 7 C.F.R. § 205.202(b)” for the Johnsons’ economic losses. Then, the court scolded the Johnsons for suing Respondent Paynesville for pesticide overspray instead of appealing OCIA’s decertification determination: . . . OCIA directed [the Johnsons] to take their soybean fields out of organic production for 3 years. But any such directive was inconsistent with the plain language of 7 C.F.R. § 205.202(b). It was also inconsistent with the OFPA because the Johnsons presented no evidence that any residue exceeded the 5 percent tolerance level in 7 C.F.R. § 205.671. The certifying agent’s erroneous interpretation of section 205.202(b) and the OFPA was the proximate cause of the Johnsons’ injury, but the Johnsons cannot hold [Paynesville] liable for the certifying agent’s erroneous interpretation of the law. The Johnsons’ remedy for the certifying agent’s error was an appeal of that determination because it was “inconsistent with the” OFPA. 7 U.S.C. § 6520(a)(2). App. 39 (emphasis added).

33 From a federal agency perspective, unnecessary and wasteful decertification appeals promoted by the Minnesota court decision will burden the small NOP compliance and enforcement team and clog the NOP appeals pipeline. Organic farmers in Minnesota who follow the Minnesota court’s direction have no other option but to appeal certifying agent decertification decisions based on third-party pesticide drift. Barring a factual discrepancy as to whether drift occurred at all, NOP will uphold the decertification decisions in accordance with the plain language of section 205.202(b). Subsequent appeals to the USDA National Appeals Division and U.S. District Courts will almost certainly affirm the decertification decision. Thus, after Minnesota farmers exhaust administrative remedies and expend scarce federal adjudicative resources, the farmers will still be stuck in a Catch22: unable to sell crops at the higher organic price but also unable to recover against a law-breaking pesticide applicator. Furthermore, the fruitless appeal situation described above is likely to recur with frequency. As the commentary on the NOP Final Rule and the NOP itself recognizes, third-party pesticide drift is not uncommon – even when pesticide applicators actually comply with federal application laws. Additionally, as news spreads outside of Minnesota during the winter agricultural conference season, producers in other states may feel compelled by the Minnesota decision to appeal decertification in order to preserve potential state damages claims – unnecessarily creating extra stress for the federal administrative appeals system.

34 In addition to burdening the federal appeals system, certifying agents cannot know how to conduct their operations in light of this decision. It is impossible, on the one hand, for a certifier to comply with the NOP regulations detailing the process for revoking certifications due to third-party pesticide drift at any level, and, on the other hand, comply with the new and additional duty created by the Minnesota Supreme Court not to revoke farmland certifications solely due to third-party pesticide drift. Certifiers are multi-state, and often multinational, actors engaged in interstate commerce. An increase in appeals of decertification based on thirdparty drift will create adverse economic consequences for the over 40 NOP-accredited certifying agents based in the United States. See U.S. Dep’t of Agric., Agric. Mktg. Serv., Nat’l Organic Program, List of USDA-Authorized Organic Certifying Agents by State of Operation (2012). The Minnesota ruling thus both interferes with the certifying agent’s federal enforcement efforts and increases certifier costs by forcing certifiers to defend correct decertification decisions. Certifying agents will likely pass on this increased cost of certification to producers and handlers, further driving up the cost of organic products. The Minnesota Supreme Court decision also threatens adverse economic consequences for certifying agents in the form of increased residue testing costs. In Minnesota, certifying agents are no longer empowered to decertify land based on third-party drift without a test result showing that the 5 percent

35 residue tolerance has been met. App. 39-40. As the commentary to the NOP Final Rule recognizes, testing is both expensive and time-consuming. In recognition of this fact, and also to preserve the process-based (as opposed to testing-based) nature of the organic certification system, a new NOP rule set to take effect on January 1, 2013 makes clear that certifying agents are annually required to conduct residue testing from only five percent of the operations they certify. See Periodic Residue Testing Rule, 77 Fed. Reg. at 67,239. As the commentary to the residue testing rule makes clear, NOP is “providing discretion to the certifying agent to select operations” to be tested. Periodic Residue Testing Rule, 77 Fed. Reg. at 67,241. Given that the Minnesota decision does not allow the agent to exercise this discretion, the Minnesota Supreme Court is impermissibly substituting its policy judgment for that of an expert federal agency. When the Minnesota court attempted to reduce the process-based organic certification system to a black and white testing regime, it clearly did not understand that some 95 percent of organic operations are not tested in a given year. 3. The Erroneous Minnesota Ruling Discourages Organic Production by Creating Difficult Economic Conditions for Organic Producers and Handlers The Minnesota Supreme Court’s erroneous interpretation of section 205.202(b) has created economic

36 uncertainty for organic producers – especially smallscale family farmers – who no longer have a remedy when their carefully-tended organic crops are damaged by pesticide applicators. The organic farmers in Minnesota who fall victim to pesticide drift are now caught in a Catch-22 in which they are required by NOP to withdraw a field from organic production for three years, but have no remedy for the economic loss they suffer as a result. This conflict between Minnesota and the federal government creates unfairness to producer litigants in Minnesota as compared to organic farmers in other states. The Minnesota decision also creates economic uncertainty for organic handlers (e.g., processors, wholesalers and retailers) who depend upon organic production at high levels of organic integrity in order to compete in the over $31 billion organic marketplace. For example, producer marketing contracts could be undermined if buyers can no longer purchase organic agricultural products originating in Minnesota due to concerns about organic integrity regarding products grown on land impacted by synthetic pesticides or herbicides. Additionally, any decrease in the number of farmers interested in organic production due to concerns about increased economic uncertainty related to pesticide drift is bad for organic handlers, who have faced unprecedented demand for organic products. See Carolyn Dimitri, et al., U.S. Dep’t of Agric., Econ. Research Serv., The Role of Contracts in the Organic Supply Chain: 2004 and 2007 1 (2010).

37 In sum, the organic ecosystem was functioning smoothly before the Minnesota Supreme Court botched its interpretation of section 205.202(b). This Court should grant certiorari and summarily reverse to prevent immediate real-world harm to efficient statutory and judicial administration, multi-state and multi-national businesses, organic farmers, and consumers. At a minimum, this Court should call for the views of the solicitor general with regard to whether the question presented in this case raises an issue of national importance warranting a grant of certiorari. C. The Minnesota Supreme Court Relied Heavily on Inapplicable Authority that Pertains to Genetic Drift – Not Pesticide Drift Finally, the Minnesota Supreme Court based its interpretation of section 205.202(b) upon inapplicable authority: NOP language that actually refers to genetic drift – not to the drift of prohibited substances like the chemical pesticides and herbicides at issue here. The Minnesota court’s ruling that “a third party’s pesticide drift cannot cause a field to lose organic certification” is directly supported by citation to language from the NOP Final Rule under the commentary heading “ ‘Genetic’ Drift.” See NOP Final Rule, 65 Fed. Reg. at 80,556. The excerpt, reproduced below, repeatedly refers to “excluded methods,” which are unambiguously defined in the NOP as methods to genetically modify organisms. See 7 C.F.R. § 205.2 (2012).

38 The excerpt from the NOP Final Rule, erroneously relied upon by the Minnesota Supreme Court, states: When we are considering drift issues, it is particularly important to remember that organic standards are process based. Certifying agents attest to the ability of organic operations to follow a set of production standards and practices that meet the requirements of the Act and the regulations. This regulation prohibits the use of excluded methods in organic operations. The presence of a detectable residue of a product of excluded methods alone does not necessarily constitute a violation of this regulation. As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods as detailed in their approved organic system plan, the unintentional presence of the products of excluded methods should not affect the status of an organic product or operation. App. 37-38 n.15 (citing NOP Final Rule, 65 Fed. Reg. at 80,556) (emphasis added); see also App. 36-37 at n.14.5
Further highlighting the Minnesota Supreme Court’s mistake, the excerpted segment about excluded methods appears within the larger portion of commentary discussing Subpart B of the NOP, a subpart that does not include the regulation at issue. See 7 C.F.R. Part 205 Subpart B, §§ 205.100-199; see also NOP Final Rule, 65 Fed. Reg. at 80,551-558 (discussing Subpart B). The regulation at issue here, 7 C.F.R. § 205.202(b), is found (Continued on following page)
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39 The Minnesota Supreme Court apparently conflated the terms “prohibited substances” and “excluded methods,” and believed the two terms to be interchangeable. In fact, the terms are separately defined and regulated within the NOP.6 See 7 C.F.R. § 205.2 (2012) (definitions). For example, the final sentence in the excerpt above stating “the unintentional presence of the products of excluded methods should not affect the status of an organic product or operation” only makes sense with respect to excluded methods because the NOP intentionally distinguishes between excluded methods and their products. See NOP Final Rule, 65 Fed. Reg. at 80,549 (“We have specifically structured the provisions relating to excluded methods to refer to the use of methods. Including the products of excluded methods in the definition would not be consistent with this approach to organic standards as a process-based system. For the same reason, we
within Subpart C of the NOP, which is separately discussed in the commentary to the NOP Final Rule. See 7 C.F.R. Part 205 Subpart C, §§ 205.200-299; see also NOP Final Rule, 65 Fed. Reg. at 80,558-575 (discussing Subpart C). 6 Although “drift” is defined in the NOP regulations only with respect to prohibited substances, the terms “genetic drift” or “GMO drift” are commonly used within in the organic community to refer to the drift of the products of excluded methods (generally meaning pollen from genetically modified plants). See 7 C.F.R. § 205.2 (2012) (defining drift as “the physical movement of prohibited substances from the intended target site onto an organic operation or portion thereof ”); see, e.g., NOP Final Rule, 65 Fed. Reg. at 80,556 (using the term “genetic drift” in clarifying the NOP regulations with respect to drift of pollen from genetically modified crops).

40 have retained the term, ‘‘excluded methods,’’ to reinforce that process-based approach.”). As the Minnesota Supreme Court holding mistakenly relies upon inapplicable language solely pertaining to excluded methods to support its interpretation of section 205.202(b)’s prohibition of prohibited substances on land, the Minnesota decision should be reversed.
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CONCLUSION For the reasons described above, the Minnesota Supreme Court’s erroneous interpretation of section 205.202(b) interferes with the cornerstone of a uniform national certification regime and cannot be reconciled with the plain statutory language and framework of the OFPA and NOP. This Court should grant certiorari and summarily reverse the decision. Respectfully submitted, LYNN A. HAYES Counsel of Record AMANDA N. HEYMAN FARMERS’ LEGAL ACTION GROUP, INCORPORATED 360 North Robert Street, Suite 500 Saint Paul, Minnesota 55101 651.223.5400 lhayes@flaginc.org Counsel for Petitioners, Oluf Johnson and Debra Johnson November 2012

App. 1 STATE OF MINNESOTA IN SUPREME COURT A10-1596 A10-2135 Court of Appeals Gildea, C.J. Dissenting, Page, J.

Oluf Johnson, et al., Respondents, vs. Filed: August 1, 2012 Paynesville Farmers Union Office of Appellate Courts Cooperative Oil Company, Appellant.
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Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., Plymouth, Minnesota; and Harry Burns, Burns Law Office, Saint Cloud, Minnesota, for respondents. Kevin F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., Saint Cloud, Minnesota, for appellant. Jonathan C. Miesen, Margaret E. Dalton, Stoel Rives LLP, Minneapolis, Minnesota, for amici curiae Minnesota Grain and Feed Association, Cooperative Network, and Minnesota Statewide Cooperative Managers Association.
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App. 2 SYLLABUS 1. Because Minnesota does not recognize claims for trespass by particulate matter, the district court did not err in dismissing respondents’ trespass claim as a matter of law. 2. Under 7 C.F.R. § 205.202(b) (2012), a producer’s intentional placement of pesticides onto fields from which crops are intended to be harvested and sold as organic is prohibited, but section 205.202(b) does not regulate the drift of pesticides onto those fields. The district court therefore did not err in dismissing respondents’ nuisance and negligence per se claims based on section 205.202(b). But to the extent that respondents’ nuisance and negligence per se claims are not grounded on section 205.202(b), the court erred when it dismissed those claims. 3. Because respondents’ proposed amended nuisance and negligence per se claims that are not grounded on 7 C.F.R. § 205.202(b), are not futile, the district court abused its discretion in denying respondents’ motion to amend their complaint to include those claims. Affirmed in part, reversed in part, and remanded. OPINION GILDEA, Chief Justice. This action involves alleged pesticide contamination of organic farm fields in central Minnesota. Appellant Paynesville Farmers Union Cooperative Oil

App. 3 Company (“Cooperative”) is a member owned farm products and services provider that, among other things, applies pesticides to farm fields. Respondents Oluf and Debra Johnson (“Johnsons”) are organic farmers. The Johnsons claim that while the Cooperative was spraying pesticide onto conventionally farmed fields adjacent to the Johnsons’ fields, some pesticide drifted onto and contaminated the Johnsons’ organic fields. The Johnsons sued the Cooperative on theories including trespass, nuisance, and negligence per se and sought damages and injunctive relief. The Johnsons claim that the pesticide drift caused them: (1) economic damages because they had to take the contaminated fields out of organic production for 3 years pursuant to 7 C.F.R. § 205.202(b) (2012), (2) economic damages because they had to destroy some crops, (3) inconvenience, and (4) adverse health effects. The district court granted summary judgment to the Cooperative and dismissed all of the Johnsons’ claims. The court of appeals reversed. Because we conclude that the Johnsons’ trespass claim and claims for damages based on 7 C.F.R. § 205.202(b), fail as a matter of law, we reverse the court of appeals’ reinstatement of those claims. But because the district court failed to consider whether the Johnsons’ non trespass claims that were not based on 7 C.F.R. § 205.202(b), could survive summary judgment, we affirm the court of appeals’ reinstatement of those claims and remand for proceedings consistent with this opinion.

App. 4 Before discussing the factual background of this case, it is helpful to briefly summarize the organic farming regulations at issue. American organic farming is regulated by the Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501-6523 (2006) (“OFPA”), and the associated federal regulations in the National Organic Program, 7 C.F.R. § 205 (2012) (“NOP”). One of the purposes of the OFPA is “to establish national standards governing the marketing of certain agricultural products as organically produced products.” 7 U.S.C. § 6501(1). The states may adopt the federal standards or they may impose “more restrictive requirements governing” products sold as organic. 7 U.S.C. § 6507(b)(1). Minnesota has adopted the OFPA and the NOP as its state organic farming law. Minn. Stat. § 31.925 (2010) (adopting the OFPA and the NOP “as the organic food production law and rules in this state”). Under the OFPA and the NOP regulations, a producer cannot market its crops as “organic,” and receive the premium price paid for organic products, unless the producer is “certified” by an organic certifying agent. 7 U.S.C. § 6503(d) (stating that the OFPA is implemented by certifying agents authorized through the Secretary of Agriculture); 7 C.F.R. §§ 205.100, .102 (describing which products can carry the “organic” label). And in order to receive certification, a producer must comply with the NOP. 7 C.F.R. § 205.400. Among numerous other requirements, the NOP provides that land from which crops are intended to be sold as organic must “[h]ave had

App. 5 no prohibited substances . . . applied to it for a period of 3 years immediately preceding harvest of the crop.” 7 C.F.R. § 205.202(b).1 Once producers obtain certification to sell products as organic, the OFPA and NOP provide guidelines for certified organic farming operations to ensure continued compliance. See 7 U.S.C. § 6511. Under these guidelines, if a prohibited substance is detected on a product sold or labeled as organic, the certifying agent must conduct an investigation to determine whether there has been a violation of the federal requirements. See 7 U.S.C. § 6511(c)(1). If the investigation indicates that the residue detected on the organic product was “the result of intentional application of a prohibited substance” or the residue is “present at levels that are greater than” federal regulations prescribe, the product cannot be sold as organic. 7 U.S.C. § 6511(c)(2). Under the NOP regulations, crops may not be sold as organic if the crops are shown to have a prohibited substance on them at levels that are greater than 5 percent of the Environmental Protection Agency’s tolerance level for that substance. 7 C.F.R. § 205.671 With this regulatory scheme in mind, we turn to the incidents that gave rise to this lawsuit.

The parties agree that the pesticides the Cooperative sprayed are “prohibited substances” under the NOP.

1

App. 6 In June 2007, the Johnsons filed a complaint with the Minnesota Department of Agriculture (“MDA”), alleging that the Cooperative had contaminated one of their transitional soybean fields2 through pesticide drift. The subsequent MDA investigation verified that on June 15, 2007, a date when winds were blowing toward the Johnsons’ fields at 9 to 21 miles per hour, the Cooperative sprayed Status (diflufenzopyr and dicamba) and Roundup Original (glyphosate) onto a conventional farmer’s field immediately adjacent to one of the Johnsons’ transitional soybean fields. The MDA informed the Johnsons that there was no tolerance for diflufenzopyr in soybeans (organic, transitional, or conventional) and that, pending chemical testing, the MDA would “determine if there [would] be any harvest prohibitions” on the Johnsons’ soybeans. After receiving the results of the chemical testing, the MDA informed the parties that test results revealed that the chemical dicamba was present, but below detection levels. The MDA also reported that the chemicals diflufenzopyr and glyphosate were not present. Because only one of the three chemicals was present based on its testing, the MDA concluded that “it can not be proven if the detections were from drift.” And even though the testing did not find diflufenzopyr, the MDA still required that the Johnsons plow down a small portion of the soybeans
A transitional field is one onto which prohibited substances are no longer being applied but has not yet been certified as organic. See 7 C.F.R. § 205.202.
2

App. 7 growing in the field because of “the presence of dicamba” and based on the “visual damage” observed to this crop. In response to this MDA directive, the Johnsons destroyed approximately 10 acres of their soybean crop. The Johnsons also reported the alleged pesticide drift to their organic certifying agent, the Organic Crop Improvement Association (OCIA), as they were required to do under the NOP. See 7 C.F.R. § 205.400(f)(1). In an August 27, 2007 letter, the OCIA stated that there may have been chemical drift onto a transitional soybean field and that chemical testing was being done. The Johnsons were also told that “[i]f the analysis indicate[d] contamination,” they would have to “take this land back to the beginning of 36-month transition.” Based on the OCIA’s letter, and the dicamba found by the MDA, the Johnsons took the transitional soybean field back to the beginning of the 3-year transition process. In other words, the Johnsons did not market soybeans harvested from this field as organic for an additional 3 years. On July 3, 2008, the Johnsons reported another incident of alleged contamination to the MDA. In this report, the Johnsons alleged that there was pesticide drift onto one of their transitional alfalfa fields after the Cooperative applied Roundup Power Max and Select Max (containing the chemicals glyphosate and clethodium) to a neighboring conventional farmer’s field. The MDA investigator did not observe any plant injury, but chemical testing revealed a minimal amount of glyphosate in the Johnsons’ transitional

App. 8 alfalfa. The Johnsons reported another incident of drift on August 1, 2008. The MDA “did not observe any plant injury to the alfalfa field or plants, grass and weeds,” but chemical testing revealed the presence, at minimal levels, of chloropyrifos, the active ingredient in another pesticide, Lorsban Advanced. The MDA concluded that drift from the Cooperative’s spraying caused both of the positive test results. After receiving these test results, the Johnsons took the affected alfalfa field out of organic production for an additional 3 years. The Johnsons took this action because they believed that the presence of any amount of pesticide on their organic fields prohibited them from selling crops harvested from these fields as organic. Based on the presence of pesticides in their fields, the Johnsons filed this lawsuit against the Cooperative, alleging trespass, nuisance, negligence per se, and battery. They sought damages and a permanent injunction prohibiting the Cooperative from spraying pesticides within a half mile of the Johnsons’ fields.3 The Johnsons claimed the following
The complaint included claims based on an incident from 2005 and the June 2007 incident described above. In their proposed amended complaint, the Johnsons sought to add claims based on the two 2008 incidents described above. The district court dismissed the Johnsons’ 2005 claims under Minn. Stat. § 541.07(7) (2010), which provides a 2-year statute of limitations for claims “against the person who applies [a] pesticide for injury or damage to property resulting from the application.” The court also dismissed the Johnsons’ battery claims for lack of (Continued on following page)
3

App. 9 types of damages: (1) loss of profits because they had to take the fields onto which pesticide drifted out of organic production for 3 years; (2) loss of profits because they had to destroy approximately 10 acres of soybeans; (3) inconvenience due to increased weeding, pollution remediation, and NOP reporting responsibilities; and (4) adverse health effects. The district court granted, in part, the Johnsons’ motion for a temporary injunction on June 26, 2009, requiring the Cooperative to give the Johnsons notice before it sprayed pesticides on land adjoining the Johnsons’ organic farm. Subsequently, the Cooperative moved for summary judgment, and the Johnsons moved to amend their complaint to include claims based on the two 2008 incidents and a claim for punitive damages. After a hearing, the district court granted the Cooperative summary judgment on all of the Johnsons’ claims, denied the Johnsons’ motion to amend, and vacated the temporary injunction.4 The district court concluded that the Johnsons’ trespass claim failed as a matter of law, relying on the court of appeals decision in Wendinger v. Forst
evidence of intent. The Johnsons did not appeal these determinations. 4 While the court of appeals expressly reversed the district court’s denial of the Johnsons’ claim for a permanent injunction, it did not reinstate the temporary injunction. Johnson v. Paynesville Farmers Union Coop. Oil Co., 802 N.W.2d 383, 392 (Minn. App. 2011). The Johnsons did not appeal the court of appeals’ decision on the temporary injunction.

App. 10 Farms, Inc., 662 N.W.2d 546, 550 (Minn. App. 2003), which held that Minnesota does not recognize trespass by particulate matter.5 The district court also concluded that all of the Johnsons’ negligence per se and nuisance claims failed as a matter of law because the Johnsons lacked evidence of damages. This determination was based on the court’s conclusion that because there was no evidence that any chemical on the Johnsons’ crops exceeded the 5 percent tolerance level in 7 C.F.R. § 205.671, the Johnsons could have sold their crops as organic and therefore the Johnsons did not prove damages. Because the Johnsons did not have any “evidence of damages based on the NOP regulations,” the court concluded that all of the Johnsons’ claims must be dismissed and the temporary injunction vacated. And because the court concluded that the Johnsons’ claims arising from the 2008 incidents would necessarily fail as a matter of law under the same analysis, the court denied the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents. The court of appeals reversed and remanded. Johnson v. Paynesville Farmers Union Coop. Oil Co., 802 N.W.2d 383 (Minn. App. 2011). As to the trespass
5

The district court defined “particulate matter” as “ ‘[m]aterial suspended in the air in the form of minute solid particles or liquid droplets, especially when considered as an atmospheric pollutant.’ ” (Quoting The American Heritage Dictionary of the English Language 1282 (4th ed. 2000)). For purposes of this opinion, we use the same definition.

App. 11 claim, the court of appeals concluded that the district court “read too much into” Wendinger. Id. at 387. The court of appeals stated that its decision in Wendinger should not be read “to define a unique category of physical substances that can never constitute a trespass.” Id. at 388. Instead of focusing on the intangible nature of pesticide drift, the court of appeals focused on the harm caused by it, stating that pesticide drift will “affect the composition of the land.” Id. Relying on cases from other jurisdictions that were explicitly distinguished in Wendinger, the court of appeals held that pesticide drift “can interfere with possession” and therefore “a trespass action can arise from a chemical pesticide being deposited in [discernible] and consequential amounts onto one agricultural property as the result of errant overspray during application directed at another.” Id. at 389. As to the negligence per se and nuisance claims based on 7 C.F.R. § 205.202(b), the court of appeals disagreed with the district court’s interpretation of the NOP regulations. Johnson, 802 N.W.2d at 390-91. The court of appeals held that the phrase “applied to it” in section 205.202(b) included situations in which pesticides unintentionally came into contact with organic fields. 802 N.W.2d at 390. Based on this conclusion, the court reasoned that the presence of any amount of pesticide on the Johnsons’ fields rendered the Johnsons noncompliant with 7 C.F.R. § 205.202(b), and therefore that OCIA had discretion to decertify the Johnsons’ fields. 802 N.W.2d at 391 (citing 7 C.F.R. § 205.662(a), (c) (providing that “any noncompliance”

App. 12 with the NOP can lead to decertification)). And because the presence of pesticide on the Johnsons’ fields allegedly caused those fields to be decertified, the court of appeals held that the Johnsons had viable claims for damages based on 7 C.F.R. § 205.202(b). 802 N.W.2d at 391. The court of appeals also concluded that the district court erred in failing to separately analyze or discuss the Johnsons’ claims that were not based on trespass or on 7 C.F.R. § 205.202(b), before dismissing all of the Johnsons’ claims, and that the district court had abused its discretion in denying the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents. 802 N.W.2d at 391-92. We granted the Cooperative’s petition for review, and on appeal, the Cooperative argues that (1) the Johnsons’ trespass claim fails as a matter of law; (2) all of the Johnsons’ claims fail as a matter of law because the Johnsons have not shown damages; (3) the district court did not err when it denied the Johnsons’ motion to amend their complaint; and (4) the district court did not err when it denied the Johnsons a permanent injunction. We consider each of these issues in turn. I. We turn first to the question of whether, as the district court held, the Johnsons’ trespass claim fails as a matter of law. The Johnsons assert that the Cooperative trespassed when it sprayed pesticide onto

App. 13 a neighboring conventional field and wind carried the pesticide, as particulate matter, onto the Johnsons’ land. The Johnsons contend “that as long as there is damage to the land resulting from deposition of ‘particulate matter’ a viable claim for trespass exists.” The Cooperative argues that the invasion of particulate matter does not, as a matter of law, constitute a trespass in Minnesota. Whether the Johnsons have alleged a viable claim for trespass is a question of law that we review de novo. See SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy Funeral Corp., 795 N.W.2d 855, 865 (Minn. 2011) (reviewing de novo whether claimants had alleged the elements of a claim). For the reasons that follow, we conclude that the conduct about which the Johnsons complain does not constitute a trespass in Minnesota. We begin with a discussion of the tort of trespass. In Minnesota, a trespass is committed where a plaintiff has the “right of possession” to the land at issue and there is a “wrongful and unlawful entry upon such possession by defendant.” All Am. Foods, Inc. v. Cnty. of Aitkin, 266 N.W.2d 704, 705 (Minn. 1978) (citation omitted); see generally 46 Dunnell Minn. Digest Trespass § 1.02 (4th ed. 2000). Actual damages are not an element of the tort of trespass. Greenwood v. Evergreen Mines Co., 220 Minn. 296, 312, 19 N.W.2d 726, 734-35 (1945). In the absence of actual damages, the trespasser is liable for nominal damages. Sime v. Jensen, 213 Minn. 476, 481, 7 N.W.2d 325, 328 (1942); see also Romans v. Nadler, 217 Minn. 174, 180-81, 14 N.W.2d 482, 486 (1944) (citing Whittaker v. Stangvick,

App. 14 100 Minn. 386, 111 N.W. 295 (1907)). Finally, because trespass is an intentional tort, reasonableness on the part of the defendant is not a defense to trespass liability. See H. Christiansen & Sons, Inc. v. City of Duluth, 225 Minn. 475, 480, 31 N.W.2d 270, 273-74 (1948). We have not specifically considered the question of whether particulate matter can result in a trespass. The “gist of the tort” of trespass, however, is the “intentional interference with rights of exclusive possession.” Dan B. Dobbs, The Law of Torts § 50 at 95 (2000); see also Martin v. Smith, 214 Minn. 9, 12, 7 N.W.2d 481, 482 (1942) (“The gist of the action of trespass . . . is the breaking and entering . . . of the plaintiff ’s close.”). In other words, the tort of trespass is committed when a person “intentionally enters or causes direct and tangible entry upon the land in possession of another.” Dobbs, supra, § 50 at 95 (footnotes omitted). And the defendant’s entry must be done “by means of some physical, tangible agency” in order to constitute a trespass. James A. Henderson, Jr. et al., The Torts Process 386 (7th ed. 2007). Our case law is consistent with this traditional formulation of trespass because we have recognized that a trespass can occur when a person or tangible object enters the plaintiff ’s land.6 See Victor v. Sell, 301
Other jurisdictions similarly recognize that trespass requires invasion by tangible matter. See, e.g., City of Bristol v. Tilcon Minerals, Inc., 931 A.2d 237, 258 (Conn. 2007) (“[B]ecause it is the right of the owner in possession to exclusive possession (Continued on following page)
6

App. 15 Minn. 309, 313-14 n.1, 222 N.W.2d 337, 340 n.1 (1974) (“ ‘One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . . enters land in the possession of the other, or causes a thing or a third person to do so. . . .’ ” (quoting with approval the Restatement (Second) of Torts § 158 (1965))); Greenwood, 220 Minn. at 311-12, 19 N.W.2d at 734-35 (recognizing that trespass can occur when water floods onto the plaintiff ’s land); Whittaker, 100 Minn. at 391, 111 N.W. at 297 (holding that shotgun pellets that landed on the plaintiff ’s property could constitute a trespass).7
that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by tangible matter.”); Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998) (“Trespass comprehends an actual physical invasion by a tangible matter.” (citation omitted)); Ondovchik Family Ltd. P’ship v. Agency of Transp., 996 A.2d 1179, 1182 (Vt. 2010) (“[T]respass does not always require personal entry onto land, since a tangible invasion of the [ ] property is enough to make out a prima facie case for trespass.” (citation omitted) (internal quotation marks omitted)). 7 In Whittaker, we also stated, that “[i]t is . . . immaterial by means of what instrumentality the trespass is committed” and that “[o]ne maliciously annoying another by means even of loud noises . . . is guilty of trespass.” 100 Minn. at 389-90, 111 N.W. at 296. This discussion, however, is referencing not the tort of trespass to land, which is the claim at issue here, but the broader common law usage of the word “trespass.” See Snow v. City of Columbia, 409 S.E.2d 797, 800 n.3 (S.C. Ct. App. 1991) (“The word ‘trespass’ in medieval usage referred to wrongdoing in the general sense, . . . not to the later nominate tort of trespass consisting of intentional and direct injury to lands, goods, or the (Continued on following page)

App. 16 When people or tangible objects enter the plaintiff ’s land without permission, these entries disturb the landowner’s right to exclusively possess her land. W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 13, at 70 (5th ed. 1984). But the disruption to the landowner’s exclusive possessory interest is not the same when the invasion is committed by an intangible agency, such as the particulate matter at issue here. Id. § 13, at 71. Such invasions may interfere with the landowner’s use and enjoyment of her land, but those invasions do not require that the landowner share possession of her land in the way that invasions by physical objects do. See Adams v.
person.”); Stephen H. Lesher, Trespass: The Origin of Everything, http://www.slesher.com/trespass.html (last visited July 18, 2012) (discussing how originally, trespass referred to every wrong but eventually was transformed into four types of wrongs, “trespass quare clausum fregit” (trespass to land), “trespass de bonis asportatis” (conversion), “trespass vi et armis” (assault or battery), and “trespass in consimili casu” (any other tort)); see also William J. Bowman & Patrick F. Hofer, The Fallacy of Personal Injury Liability Insurance Coverage for Environmental Claims, 12 Va. Envtl. L.J. 393, 411 (1993) (“[T]o examine the history of trespass is to explore the history of all torts, for it evolved into the form of redress for all civil wrongs. . . . Trespass to land was but one of these wrongs.”). The cases we cited in Whittaker confirm this broader meaning. 100 Minn. at 390, 111 N.W. at 296 (citing Shellabarger v. Morris, 91 S.W. 1005, 1005-07 (Mo. Ct. App. 1905) (discussing that defendant committed a trespass to the person when she entered plaintiff ’s land and hit plaintiff); Donahue v. Keystone Gas Co., 73 N.E. 1108 (N.Y. 1905) (recognizing that defendant was responsible for damages caused to trees due to defendant’s negligence in releasing gas fumes near the tree roots)).

App. 17 Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 218-19 (Mich. Ct. App. 1999) (“[P]ossessory rights to real property include as distinct interests the right to exclude and the right to enjoy, violations of which give rise to the distinct causes of action respectively of trespass and nuisance.” (citing Keeton, supra, § 87)); John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008) (holding that landowner who sprayed pesticide on his land that drifted onto plaintiff ’s land did not commit trespass because there was no evidence that the pesticide interfered with the plaintiff ’s right to exclusive possession of his land). This distinction between inference with possessory rights and interference with use and enjoyment rights is reflected in the only reported decisions in Minnesota, both from the court of appeals, which reached the question of whether an invasion by particulate matter constitutes a trespass. In both cases, the court of appeals held that such invasions do not, as a matter of law, constitute trespass. Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. App. 2003) (noting that Minnesota “has not recognized trespass by particulate matter” and rejecting a trespass claim because “the odors of which the [plaintiffs] complain interfere with the use and enjoyment of their land, not with their exclusive possession of it”), rev. denied (Minn. Aug. 5, 2003); Fagerlie v. City of Willmar, 435 N.W.2d 641, 643, 644 n.2 (Minn. App. 1989) (concluding that claims based upon the emission of offensive odors are nuisance claims, not trespass claims, because the claims alleged “interference with

App. 18 [plaintiffs’] use and enjoyment of their land, not invasion of their exclusive possession”). The court of appeals forged new ground in this case and extended Minnesota trespass jurisprudence when it held that a trespass could occur through the entry of intangible objects, such as the particulate matter at issue here. Johnson, 802 N.W.2d at 388-89. The court looked outside Minnesota to support the holding it reached.8 Id. at 388-89 (citing Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979); Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782 (Wash. 1985)).
The court of appeals also cited our decision in Anderson v. Department of Natural Resources, 693 N.W.2d 181 (Minn. 2005), and a prior case from that court – Red River Spray Service, Inc. v. Nelson, 404 N.W.2d 332 (Minn. App. 1987). Johnson, 802 N.W.2d at 388. These cases are inapposite to the question presented in this case because the claims at issue in those cases were not trespass claims. For example, the portion of our opinion in Anderson on which the court of appeals relied discusses the concept of the duty that adjoining landowners owe to one another. Johnson, 802 N.W.2d at 388 (citing Anderson, 693 N.W.2d at 187). The concept of duty is a negligence concept. See, e.g., Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (stating the elements of negligence). The court of appeals case similarly discusses negligence principles. See Red River Spray Serv., 404 N.W.2d at 334 (holding that a plaintiff has a claim for negligence when pesticide drift actually damages his crops). As we have discussed above, negligence, or lack thereof, on the part of the alleged trespasser is not relevant to a determination of the question of whether trespass occurs. See H. Christiansen & Sons, Inc., 225 Minn. at 480, 31 N.W.2d at 273-74. The court of appeals’ reliance on negligence cases to support its determination that Minnesota recognizes a claim for trespass by particulate matter was therefore misplaced.
8

App. 19 In Bradley, the Washington Supreme Court held that particulate matter deposited on the plaintiff ’s land from the defendant’s copper smelter could constitute a trespass. 709 P.2d at 784, 790. And in Borland, the Alabama Supreme Court upheld a trespass claim based on the defendant’s “emission of lead particulates and sulfoxide gases” that the plaintiffs alleged accumulated on their property. 369 So. 2d at 525-26. These cases go beyond our precedent because they conclude that intangible objects can support a claim for trespass to land. In addition, given that “the ambient environment always contains particulate matter from many sources,” the expansion of the tort of trespass in cases such as Bradley and Borland to include invasions by intangible matter potentially “subject[s] countless persons and entities to automatic liability for trespass absent any demonstrated injury.” John Larkin, Inc., 959 A.2d at 555; see also Borland, 369 So. 2d at 529 (“It might appear, at first blush, from our holding today that every property owner in this State would have a cause of action against any neighboring industry which emitted particulate matter into the atmosphere, or even a passing motorist, whose exhaust emissions come to rest upon another’s property.”). To guard against that result, the courts in both Bradley and Borland required that it be reasonably foreseeable that the intangible matter “result in an invasion of plaintiff ’s possessory interest,” and that the invasion caused “substantial damages” to the plaintiff ’s property. Borland, 369 So. 2d at 529; accord Bradley,

App. 20 709 P.2d at 791. This formulation of trespass, however, conflicts with our precedent defining the elements of trespass. Under Minnesota trespass law, entry upon the land that interferes with the landowner’s right to exclusive possession results in trespass whether that interference was reasonably foreseeable or whether it caused damages. See H. Christiansen & Sons, Inc., 225 Minn. at 480, 31 N.W.2d at 273-74; Sime, 213 Minn. at 481, 7 N.W.2d at 328. Not only is the rule from the Bradley and Borland courts inconsistent with our trespass precedent, but the rule in those cases also blurs the line between trespass and nuisance. Traditionally, trespasses are distinct from nuisances: “[t]he law of nuisance deals with indirect or intangible interference with an owner’s use and enjoyment of land, while trespass deals with direct and tangible interferences with the right to exclusive possession of land.” Dobbs, supra, § 50 at 96. But in cases like Bradley and Borland, the courts “call[ ] the intrusion of harmful microscopic particles” a trespass and not a nuisance, and then “us[e] some of the techniques of nuisance law to weigh the amount and reasonableness of the intrusion.” Dobbs, supra, § 50 at 96. Because Bradley and Borland require a showing of reasonable foreseeability and substantial damages, they essentially disregard the traditional understanding of trespass under Minnesota law, and they are “in reality, examples of either the tort of private nuisance or liability for harm resulting from negligence” and not trespass cases at all. Keeton, supra, § 13 at 71-72.

App. 21 But the Johnsons argue that Bradley and Borland reflect the modern view of trespass and urge us to likewise abandon the traditional distinctions between trespass and nuisance when considering invasions by particulate matter. We decline the Johnsons’ invitation to abandon the traditional distinctions between trespass and nuisance law. Our trespass jurisprudence recognizes the unconditional right of property owners to exclude others through the ability to maintain an action in trespass even when no damages are provable. See, e.g., Sime, 213 Minn. at 481, 7 N.W.2d at 328. The rule the Johnsons advocate, and that the court of appeals adopted, erodes this right because it imposes on the property owner the obligation to demonstrate that the invasion causes some consequence. See Johnson, 802 N.W.2d at 389. Imposing this restriction on a trespass claim is inconsistent with our precedent that provides a remedy to a property owner “for any trivial trespass.” Romans, 217 Minn. at 180, 14 N.W.2d at 486. And requiring that a property owner prove that she suffered some consequence from the trespasser’s invasion before she is able to seek redress for that invasion “offends traditional principles of ownership” by “endanger[ing] the right of exclusion itself.” Adams, 602 N.W.2d at 217, 221 (declining to recognize a trespass claim for dust, noise, and vibrations emanating from defendant’s mining operation). Moreover, it is not necessary for us to depart from our traditional understanding of trespass because other causes of action – nuisance and negligence – provide remedies for the type of behavior at issue in

App. 22 this case. Cf. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn. 1998) (concluding that “we are not persuaded that a new cause of action should be recognized if little additional protection is afforded plaintiffs”). Indeed, if a defendant’s emission of particulate matter causes enough damage to meet the court of appeals’ “[discernible] and consequential amounts” element, Johnson, 802 N.W.2d at 389, the emission will also likely be an unreasonable interference with plaintiff ’s use and enjoyment of his land, and therefore constitute a nuisance, see Highview N. Apartments v. Cnty. of Ramsey, 323 N.W.2d 65, 71 (Minn. 1982).9

The dissent would have us conclude that intangible objects can (but only sometimes) cause a trespass. The dissent argues that a trespass might occur “when [an] intangible object is actually a substance that settles on the land and damages it.” (Emphasis added). But, as discussed above, the presence of actual damages is not relevant to a discussion of trespass law because damages are not an element of a trespass claim in Minnesota. Greenwood, 220 Minn. at 312, 19 N.W.2d at 734-35. Adding an element of damages to trespass, as the dissent would have us do, would also put our courts in the unenviable position of having to decide how much damage caused by what kind of actual substance is enough to support a trespass. Making these razor thin distinctions would inevitably lead to inconsistency and confusion in Minnesota trespass jurisprudence. Moreover, nothing would be gained by forcing Minnesota’s courts into making such fine distinctions because, as we have said, in the event that an intangible object does cause actual damage to property, nuisance and negligence law provide a property owner with adequate remedies.

9

App. 23 Our review of cases from other jurisdictions reveals that courts have abandoned the distinction between trespass and nuisance, at least in part, because courts generally favor allowing parties to vindicate wrongs and, in many jurisdictions, actions for trespass have a longer statute of limitations than actions for nuisance. See, e.g., Bradley, 709 P.2d at 786, 791 (holding that the 3-year trespass statute of limitations applied rather than the 2-year nuisance statute of limitations). But there is no statute of limitations difference in Minnesota. Generally, both trespass and nuisance have a 6-year statute of limitations. Minn. Stat. § 541.05, subd. 1(2), (3) (2010) (creating a 6-year statute of limitations for statutory actions like nuisance and establishing a 6-year statute of limitations for trespass). And in a case alleging damages caused by pesticides, like this case, the applicable statute of limitations is 2 years regardless of the type of claim the plaintiff brings. Minn. Stat. § 541.07(7) (2010) (creating a 2-year statute of limitations for all tort claims against pesticide applicators). Simply put, the policy concerns that have compelled other jurisdictions to abandon the traditional view of trespass are not present in Minnesota. In summary, trespass claims address tangible invasions of the right to exclusive possession of land, and nuisance claims address invasions of the right to use and enjoyment of land. The Johnsons do not allege that a tangible object invaded their land. The Johnsons’ claim is that the Cooperative’s actions have prevented them from using their land as an organic

App. 24 farm, not that any action of the Cooperative has prevented the Johnsons from possessing any part of their land. The Johnsons’ claim is one for nuisance, not trespass. We therefore hold that the district court did not err in concluding that the Johnsons’ trespass claim 10 failed as a matter of law. II. Having concluded that the Johnsons’ trespass claim fails as a matter of law, we turn next to their nuisance and negligence per se claims. The Johnsons allege that the pesticide drift from the Cooperative’s spraying constituted a nuisance because it caused an interference with their use and enjoyment of their land. The Johnsons also allege that the pesticide drift constitutes negligence per se, asserting that the Cooperative violated Minn. Stat. § 18B.07 (2010) by “direct[ing] . . . pesticide[s] onto property beyond the boundaries of the target site,” using the pesticides in a manner inconsistent with their labels, and endangering the Johnsons’ agricultural products. The Johnsons seek loss of profits under both the nuisance and negligence per se claims based on their alleged
The dissent appears to suggest that we have adopted some new standard in our categorical conclusion that particulate matter can never cause a trespass. Our conclusion is not new; rather it is dictated by decades of Minnesota case law and centuries of common law. For the reasons discussed, we decline to, as the dissent would have us do, sweep away all this precedent in the absence of a compelling reason.
10

App. 25 inability to market their crops as organic under 7 C.F.R. § 205.202(b). In addition, the Johnsons claim damages for actual crop losses, inconvenience, and adverse health effects. With respect to the nuisance claim, Minn. Stat. § 561.01 (2010) provides that a nuisance is “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” An action seeking an injunction or to recover damages can be brought under the statute “by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.” Id. We have recognized nuisance claims when a plaintiff can show that the defendant’s conduct caused an interference with the use or enjoyment of the plaintiff ’s property. See, e.g., Anderson v. Dep’t of Natural Res., 693 N.W.2d 181, 192 (Minn. 2005) (discussing our nuisance jurisprudence); Schmidt v. Vill. of Mapleview, 293 Minn. 106, 108-09, 196 N.W.2d 626, 628-29 (1972); Huber v. City of Blue Earth, 213 Minn. 319, 322, 6 N.W.2d 471, 473 (1942). The defendant’s liability for nuisance is determined by balancing “the social utility of the defendants’ actions with the harm to the plaintiff.” Highview N. Apartments, 323 N.W.2d at 71. Regarding the Johnsons’ negligence per se claim, we have recognized that “ ‘negligence per se is a form of ordinary negligence that results from violation of a statute.’ ” Anderson, 693 N.W.2d at 189 (quoting Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981)).

App. 26 To prove a negligence claim, the plaintiff must show that the defendant breached a duty of care that proximately caused the plaintiff damage. Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011). The difference between ordinary negligence and negligence per se is that in negligence per se, a statutory duty of care is substituted for the ordinary prudent person standard “such that a violation of a statute . . . is conclusive evidence of duty and breach.” Gradjelick v. Hance, 646 N.W.2d 225, 231 n.3 (Minn. 2002). The district court dismissed the Johnsons’ nuisance and negligence per se claims because the court concluded that the Johnsons had not proven damages. Specifically, the court concluded that the Johnsons had no evidence of damages “from any alleged drift because there is no evidence said drift caused [the Johnsons] to lose their organic certification and there is no evidence that [the Johnsons] could not still sell their crops as organic since the levels of prohibited substances were below the applicable tolerance levels.” Based on this conclusion, the court granted the Cooperative summary judgment and dismissed the Johnsons’ nuisance and negligence per se claims. The court of appeals reversed. On appeal from the decision to grant summary judgment, we review de novo the district court’s application of the law and its determination that there are no genuine issues of material fact. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002).

App. 27 A. We turn first to the portion of the Johnsons’ nuisance and negligence per se claims that are based on 7 C.F.R. § 205.202(b). The Johnsons argue that they had to remove certain fields from organic production for 3 years because pesticides were “applied to” those fields in violation of 7 C.F.R. § 205.202(b). The Johnsons contend that the phrase “applied to it” in the regulation, read in conjunction with other sections of the NOP, means that any application of pesticides to a field, whether intentional or not, requires that the field be taken out of organic production for 3 years.11 Based on this reading, the Johnsons assert that they were required to take their soybean field back to the beginning of the 3-year transition period because of the 2007 pesticide drift.12 As a result, the Johnsons
On appeal to our court the Johnsons raise, for the first time, a federal preemption argument based on In re Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation, 621 F.3d 781 (8th Cir. 2010). Because the Johnsons raise this issue for the first time on appeal, the argument is waived. See Vaughn v. NW Airlines, Inc., 558 N.W.2d 736, 745 n.9 (Minn. 1997) (refusing to address a plaintiff ’s preemption argument when it was not raised as an affirmative defense in the defendant’s answer) (citing Jordan v. Clayton Brokerage Co. of St. Louis, Inc., 975 F.2d 539, 541 (8th Cir. 1992) (stating that, in federal court, preemption is ordinarily waived if not pleaded)). 12 The Cooperative does not concede that OCIA required the Johnsons to restart the soybean field’s 3-year transition period. The August 27, 2007 OCIA letter opines that “[c]hemical drift may have occurred” on part of the Johnsons’ soybean field and states that a chemical analysis is being done. OCIA also said that if chemical analysis “indicates contamination [the Johnsons] (Continued on following page)
11

App. 28 claim they lost the ability to market crops from that field as organic, and therefore lost the opportunity to seek the premium prices commanded by organic products. For its part, the Cooperative argues that the phrase “applied to it” in 7 C.F.R. § 205.202(b), unambiguously means that the organic farmer intentionally applied the prohibited substance to the field. Because the Johnsons did not apply pesticides to the field, the Cooperative argues that section 205.202(b) does not restrict the Johnsons’ sale of organic products. In the alternative, the Cooperative argues that if section 205.202(b) is ambiguous, analysis of the relevant canons of construction confirms its interpretation. The district court adopted the interpretation of the NOP regulation that the Cooperative advances. But the court of appeals reversed, holding that the phrase “applied to it” “implicitly includes unintentional
must take this land back to the beginning of 36-month transition.” “Contamination” is not defined in the letter and there is no other correspondence in the record indicating that OCIA actually directed the Johnsons to take their soybean field back to the beginning of the 3-year transition period. But because we review the facts in the light most favorable to the Johnsons on their appeal from summary judgment, we assume for purposes of this opinion that the 2007 OCIA letter required the Johnsons to restart the field’s 3-year transition period. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (noting that we examine the evidence in the light most favorable to the party against whom summary judgment was granted).

App. 29 pesticide drift,” and that therefore OCIA had discretion to decertify the Johnsons’ soybean field under section 205.202(b). Johnson, 802 N.W.2d at 390. And because there was discretion to decertify, the court of appeals concluded that the Johnsons had offered sufficient evidence to survive summary judgment. Id. at 391. We agree with the district court that section 205.202(b) does not regulate the Cooperative’s pesticide drift. In order to resolve the interpretation question presented, we must construe the regulation at issue – 7 C.F.R. § 205.202(b). Our first task is to determine whether the regulation is ambiguous. E.g., In re Cities of Annandale & Maple Lake, 731 N.W.2d 502, 516 (Minn. 2007) (considering whether a federal regulation was ambiguous). If it is not ambiguous, we apply the plain and ordinary meaning of the words used. See Exelon Generation Co. LLC v. Local 15 Int’l Bhd. Of Elec. Workers, 676 F.3d 566, 570 (7th Cir. 2012) (stating that the same rules of construction apply to federal administrative rules as to statutes); Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 828 n.9 (Minn. 2006) (noting that administrative regulations are governed by the same rules of construction that apply to statutes); cf. Caminetti v. United States, 242 U.S. 470, 485 (1917) (noting that when the meaning of a statute “is plain . . . the sole function of the courts is to enforce it according to its terms”). In deciding whether the regulation is ambiguous, however, we do not construe the regulation in isolation. Rather, we are to examine

App. 30 the federal regulation in context. See, e.g., Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, ___ U.S. ___, 132 S. Ct. 1670, 1680 (2012) (noting that courts are to consider questions of statutory interpretation by looking at phrases in the context of the entire statute). The OFPA provides important context for interpretation of the regulation because the NOP regulations were drafted to “carry out” the provisions of the OFPA. 7 U.S.C. § 6521(a). The OFPA focuses on the producers and handlers of the products that are marketed and sold as organic. See 7 U.S.C. § 6503(a) (directing the Secretary of Agriculture to “establish an organic certification program for producers and handlers of agricultural products”). For example, producers must prepare a plan for the operation of their farms in order to obtain certification to sell their products as organic. See 7 U.S.C. §§ 6504, 6513. They must also certify on an annual basis that they have not sold products labeled as organic “except in accordance” with the OFPA, and producers must allow the certifying agent an “on-site inspection” of their farm every year. 7 U.S.C. § 6506(a)(4),(5). Producers also must keep records for 5 years “concerning the production . . . of agricultural products sold . . . as organically produced.” 7 U.S.C. § 6511(d). In addition to these general provisions, the OFPA also establishes certain crop production practices that are prohibited when producers seek to sell products as organic. One of these specific practices provides that in order to be sold as organic, the product must “not be produced on land to which any prohibited

App. 31 substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products.” 7 U.S.C. § 6504(2). The OFPA also specifically provides that producers of organic products “shall not apply materials to . . . seeds or seedlings that are contrary to, or inconsistent with, the applicable organic certification program.” 7 U.S.C. § 6508(a). When we read the phrase “applied to it” in 7 C.F.R. § 205.202(b), within the context of the OFPA’s focus on regulating the practices of the producer of organic products, we conclude that this phrase unambiguously regulates behavior by the producer. In other words, in order for products to be sold as organic, the organic farmer must not have applied prohibited substances to the field from which the product was harvested for a period of 3 years preceding the harvest.13

The dissent argues that the phrase “applied to it” in 7 C.F.R. § 205.202(b) “indicates that the concern is what the land in question was exposed to not how it was exposed, why it was exposed, or who caused the exposure.” But the word “applied” usually indicates intentionality. See The American Heritage Dictionary of the English Language 86 (5th ed. 2011) (giving, as examples of usage for the word apply: “applies all her money to her mortgage,” and “applied myself to my studies”) (emphasis added). And when the word “applied” is used in other sections of the NOP, it is used to refer to intentional applications of something. See 7 C.F.R. §§ 205.203, 205.206, 205.403(c)(3). Moreover, other sections, specifically sections 205.671 and .672, indicate that the NOP is very concerned about why and how organic fields were exposed to prohibited substances. See 7 C.F.R. § 205.671 (stating that if prohibited substances are found on organically (Continued on following page)

13

App. 32 The Johnsons urge us, however, to construe the phrase “applied to it” to include actions of third parties, such as the pesticide drift that resulted from the Cooperative’s spraying activity at issue here. The Johnsons base their construction on the use of the word “application” in 7 C.F.R. § 205.202(c) and 7 C.F.R. § 205.400(f)(1). Section 205.202(c) provides that any field from which crops are intended to be sold as organic must have distinct boundaries and buffer zones to prevent “unintended application of a prohibited substance.” Section 205.400 details the requirements that a producer must meet in order to gain organic certification. Among other things, section 205.400 requires a producer to “[i]mmediately notify the certifying agent concerning any: [a]pplication, including drift, of a prohibited substance to any field . . . that is part of an [organic] operation.” 7 C.F.R. § 205.400(f)(1). Because these regulations specifically include “unintended” applications and “drift” as types of applications, the Johnsons argue that the phrase “applied to it” in section 205.202(b) must similarly be read to include the Cooperative’s pesticide drift. We disagree.
farmed products, regulators “may conduct an investigation of the certified operation to determine the cause of the prohibited substance”); 7 C.F.R. § 205.672 (stating that when prohibited substances are applied to an organic operation by a governmental entity in an emergency, the presence of the prohibited substance does not affect the land’s organic status); see also National Organic Program 65 Fed. Reg. 80,547, 80,629-30 (Dec. 21, 2000) (explaining that an intentional application of a prohibited substance gives rise to more serious consequences than the mere presence of prohibited substances).

App. 33 As is true for the OFPA and the NOP as a whole, section 205.202(c) is also directed at the producer of organic products, not third parties. In this section, the NOP requires that producers who have been certified as organic create buffers between the fields from which organic products will be harvested and other fields. This provision therefore does not support the conclusion that section 205.202(b) should be read to cover conduct by third parties. Similarly, section 205.400 does not support the Johnsons’ proposed construction of section 205.202(b). In this section, “drift” is the subject of a specific regulation. Section 205.400 confirms that when the NOP regulates “drift,” that intention is made explicitly clear. But section 205.202(b) does not regulate “drift”; instead, it provides that prohibited substances are not to be “applied to” organic fields. The use of different words in the two provisions supports the conclusion that the sections address different behavior. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006) (“[T]he question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (citation omitted) (internal quotation marks omitted)). The compliance provision in the OFPA statute – 7 U.S.C. § 6511 – and the corresponding NOP regulation – 7 C.F.R. § 205.671-confirm this interpretation. The compliance provision requires, as a way to enforce the requirements in the OFPA, that “the

App. 34 certifying agent . . . utilize a system of residue testing to test products sold . . . as organically produced.” 7 U.S.C. § 6511(a). If the agent “determines” that a product intended to be sold as organic “contains any [detectible] pesticide,” the producer may be required “to prove that any prohibited substance was not applied to” that product. 7 U.S.C. § 6511(c)(1). Should the agent determine that the residue came from the “intentional application of a prohibited substance,” the product may not be sold as organic. 7 U.S.C. § 6511(c)(2)(A). In addition, if “unavoidable residual environmental contamination” is present on the product “at levels that are greater than” those set for the substance at issue, the product may not be sold as organic. 7 U.S.C. § 6511(c)(2)(B). The OFPA thus contemplates that organic products with some amount of prohibited substance residue on them may be marketed and sold as organic. Specifically, if the residue is caused by “environmental contamination,” but does not exceed the requisite levels, the product may continue to be sold as organic. Id. The NOP regulation that specifically implements this compliance provision in the statute – 7 C.F.R. § 205.671 – confirms this interpretation. Section 205.671 addresses the disqualifying level for “unavoidable residual environmental contamination” referenced in section 6511 of the OFPA. Section 205.671 provides that a crop cannot be sold as organic “[w]hen residue testing detects prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency’s [EPA] tolerance for the specific residue.”

App. 35 7 C.F.R. § 205.671. Under the plain terms of section 205.671, therefore, crops can be sold as organic even if testing shows prohibited substances on those crops as long as the amounts detected do not exceed 5 percent of EPA limits. But if, as the Johnsons contend, any application – including drift – were prohibited by section 205.202(b), then section 205.671 would be superfluous. As the Johnsons read section 205.202(b), any amount of pesticide, no matter how it came into contact with the field, would require that the field be taken out of organic production for 3 years. There would accordingly be no organic crops left that would be covered under section 205.671 of the NOP or 7 U.S.C. § 6511(c)(2). And the OFPA and NOP would not need a provision allowing crops with minimum levels of pesticide on them (i.e., less than 5 percent) to be sold as organic because such crops would necessarily have been harvested from fields ineligible for organic production. We are not to adopt an interpretation that renders one section of the regulatory scheme a nullity. See Markham v. Cabell, 326 U.S. 404, 409 (1945) (stating that a law will not be strictly read if such reading “results in the emasculation or deletion of a provision which a less literal reading would preserve.”). Because the Johnsons’ interpretation nullifies part of the OFPA and the NOP, that interpretation is not reasonable, and we decline to adopt it. We instead conclude that “applied to it” used in section 205.202(b), when read in the context of the OFPA and the NOP regulations as a whole, unambiguously

App. 36 refers to prohibited substances that the producer intentionally puts on a field from which crops are intended to be sold as organic.14
The dissent states that, under our interpretation of the NOP, “if a third-party intentionally applies a prohibited pesticide to an organic farm field in a quantity sufficient to leave a residue which violates [section 205.202(b)], 7 U.S.C. § 6511(c)(2)(A) (2006) would not prohibit the product’s sale as an organic product because the producer had not applied the prohibited substance.” We agree that 7 U.S.C. § 6511(c)(2)(A) would not exclude such a product from organic sale. Rather, 7 U.S.C. § 6511(c)(2)(B), which prohibits the organic sale of products with prohibited substances “present at levels that are greater than unavoidable residual environmental contamination,” and 7 C.F.R. § 205.671, which sets the “5 percent rule,” would provide the prohibition. The difference between our view and the dissent’s is that under our view, where the organic farmer is not the source of the contamination, the farmer would be prohibited from marketing the affected products as organic for 1 year, whereas under the dissent’s view, the farmer would have to take the affected field out of organic production for 3 years. Compare 7 C.F.R. § 205.671, with 7 C.F.R. § 205.202(b). Such a result is both unfair to organic farmers and inconsistent with the general understanding of the OFPA and the NOP as process based regulations. See 7 C.F.R. § 205.672(a) (stating that, other than losing the ability to market the crops that actually had prohibited substances applied to them, an organic farm’s status “shall not be affected” when a prohibited substance is applied to it “as a result of a Federal or State emergency pest or disease treatment program”); National Organic Program, 65 Fed. Reg. 80,547, 80633 (Dec. 21, 2000) (discussing 7 C.F.R. § 205.672 and concluding that, while “[w]e understand that commenters would like us to remove the certification of an organic operation that has been treated with a prohibited substance . . . organic certification is a production claim, not a content claim”); 65 Fed. Reg. at 80,556 (“[O]rganic standards are process based. . . . (Continued on following page)
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App. 37 When the regulation is read in the context of the NOP and the OFPA as a whole and given the statutory scheme’s focus on regulating the practices of producers, we conclude that section 205.202(b) does not cover the Cooperative’s pesticide drift. Rather, this section governs an organic producer’s intentional application of prohibited substances onto fields from which organic products will be harvested.15

As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods . . . [the] presence of the products of excluded methods should not affect the status of an organic product or operation.”); 65 Fed. Reg. at 80,629-30 (discussing that organic operations are to be punished more severely if, after finding prohibited substances on a field, it is discovered that the organic producer applied them); see also S. Rep. No. 101-357, at 277 (1990) reprinted in 1990 U.S.C.C.A.N. 4656, 4953-54 (stating that the term “organic” is “a production claim and not a residue-free content claim,” and therefore, while organic producers may produce organic products that have been affected by “drift from a neighboring farm,” the OFPA “does not intend to prohibit minimal residue contamination that does not result from practices used by the organic farming operation”); U.S. Dep’t of Agric.-Agric. Mktg. Serv. National Organic Program, http://www.ams.usda. gov/AMSv1.0/nop (last updated June 6, 2012) (“Organic is a labeling term that indicates that the food or other agricultural product has been produced through approved methods. . . .” (emphasis added)). 15 Our plain language construction of the regulation is consistent with the generally accepted understanding of the organic standards as process based. In announcing the final rule establishing the NOP, the United States Department of Agriculture stated: When we are considering drift issues, it is particularly important to remember that organic standards are (Continued on following page)

App. 38 Having concluded that “applied to it” refers to situations where the producer has applied prohibited substances to the field, we must consider whether the district court correctly dismissed the Johnsons’ nuisance and negligence per se claims based on 7 C.F.R. § 205.202(b). While the district court, both parties, and the court of appeals characterize the dismissal as one based on a lack of prima facie evidence of damages, the Johnsons clearly made a prima facie showing of damages; they actually took their soybean field back to the beginning of the 3-year transition period and lost the opportunity to market crops from that field as organic during that time period. The question therefore is not one of damages but is more properly framed as a question of causation. Cambern v. Hubbling, 307 Minn. 168, 171, 238 N.W.2d 622, 624 (1976) (“If the trial court’s rule is correct, it is not to be
process based. Certifying agents attest to the ability of organic operations to follow a set of production standards and practices that meet the requirements of the Act and the regulations. This regulation prohibits the use of excluded methods in organic operations. The presence of a detectable residue of a product of excluded methods alone does not necessarily constitute a violation of this regulation. As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods as detailed in their approved organic system plan, the unintentional presence of the products of excluded methods should not affect the status of an organic product or operation. National Organic Program, 65 Fed. Reg. 80,547, 80,556 (Dec. 21, 2000) (codified at 7 C.F.R. § 205).

App. 39 reversed solely because its stated reason was not correct.”). And “[w]hile the existence of [causation] is usually a question of fact for the jury, ‘when reasonable minds could reach only one conclusion,’ it is a question of law.” Lietz v. N. States Power Co., 718 N.W.2d 865, 872 (Minn. 2006) (quoting Canada v. McCarthy, 567 N.W.2d 496, 506 (Minn. 1997)). In other words, the question presented is whether the Johnsons created an issue for trial that the Cooperative’s pesticide drift required the Johnsons to remove their field from organic production due to 7 C.F.R. § 205.202(b). We conclude that they did not. Construing the evidence in the light most favorable to the Johnsons, their certifying agent, OCIA, directed them to take their soybean fields out of organic production for 3 years. But any such directive was inconsistent with the plain language of 7 C.F.R. § 205.202(b). It was also inconsistent with the OFPA because the Johnsons presented no evidence that any residue exceeded the 5 percent tolerance level in 7 C.F.R. § 205.671. The certifying agent’s erroneous interpretation of section 205.202(b) and the OFPA was the proximate cause of the Johnsons’ injury, but the Johnsons cannot hold the Cooperative liable for the certifying agent’s erroneous interpretation of the law. The Johnsons’ remedy for the certifying agent’s error was an appeal of that determination because it was “inconsistent with the” OFPA. 7 U.S.C. § 6520(a)(2).

App. 40 Under the plain language of 7 C.F.R. § 205.202(b), a third party’s pesticide drift cannot cause a field to lose organic certification. The Cooperative’s pesticide drift therefore could not proximately cause the Johnsons’ soybean field to be taken out of organic production for 3 years. See Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980) (noting that to satisfy the element of proximate cause there must be a showing that the defendant’s “conduct was a substantial factor in bringing about the injury”). Because the Cooperative was not, and could not be, the proximate cause of the Johnsons’ damage, we hold that the district court properly granted summary judgment to the Cooperative on the Johnsons’ nuisance and negligence per se claims based on section 205.202(b). B. Our conclusion that the district court properly dismissed the Johnsons’ negligence per se and nuisance claims based on 7 C.F.R. § 205.202(b), does not, however, end our analysis of those claims. The Johnsons also supported their nuisance and negligence per se claims with allegations separate from the damages that they contend were caused due to the OCIA’s interpretation of section 205.202(b). Specifically, the Johnsons claim that the MDA required them to destroy a portion of their transitional soybeans affected by the alleged 2007 drift because of “the presence of dicamba” on and “visual damage” to the soybeans. The Johnsons argue that the Cooperative is liable, under nuisance and negligence per se theories, for damages

App. 41 resulting from the destruction of these soybeans.16 Because the district court failed to address whether there were any genuine issues of material fact on this aspect of the Johnsons’ nuisance and negligence per se claims, we hold that the court erred when it dismissed these claims. In addition, the Johnsons’ nuisance claim alleges that pesticides below the recommended dosage can spur weed growth and that they have had to take extra measures to control weeds in 2007 and 2008 as a result of drift onto their fields from the Cooperative’s actions. They also contend that the drift caused additional record-keeping and other burdens in connection with the operation of their farm. Finally, they
This aspect of the Johnsons’ negligence per se claim is grounded in Minn. Stat. § 18B.07 (2010), which governs the use of pesticides. Subdivision 2 provides, in relevant part: (a) A person may not use, store, handle, distribute, or dispose of a pesticide, rinsate, pesticide container, or pesticide application equipment in a manner: (1) that is inconsistent with a label or labeling as defined by FIFRA [the Federal Insecticide, Fungicide, and Rodenticide Act]; (2) that endangers humans, damages agricultural products, food, livestock, fish, or wildlife; or (3) that will cause unreasonable adverse effects on the environment. (b) A person may not direct a pesticide onto property beyond the boundaries of the target site. A person may not apply a pesticide resulting in damage to adjacent property. Minn. Stat. § 18B.07, subd. 2(a), (b).
16

App. 42 allege that Oluf Johnson suffers from “cotton mouth, swollen throat and headaches” when exposed to pesticide drift. In Highview North Apartments v. County of Ramsey, we held that “disruption and inconvenience” caused by a nuisance are actionable damages. 323 N.W.2d 65, 73 (Minn. 1982). The “inconvenience” and adverse health effects the Johnsons allege are the type of claims contemplated in Highview North Apartments, and if proven, they may affect the Johnsons’ ability to use and enjoy their land and thereby constitute a nuisance. See Minn. Stat. § 561.01. Because the district court failed to address whether there are any genuine issues of material fact on this aspect of the Johnsons’ nuisance claim, we hold that the court erred when it dismissed the nuisance claim. The same is true for the Johnsons’ request for a permanent injunction. The Johnsons sought a permanent injunction under the nuisance statute, Minn. Stat. § 561.01. Injunctive relief is a permissible remedy under that statute. Id.; see Highview N. Apartments, 323 N.W.2d at 73. The district court dismissed the Johnsons’ request for injunctive relief because it concluded that the Johnsons did not have a viable nuisance claim under 7 C.F.R. § 205.202(b), and therefore had no basis on which to seek an injunction. See Ryan v. Hennepin Cnty., 224 Minn. 444, 448, 29 N.W.2d 385, 387 (1947) (“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” (citation omitted)). But, as set forth above, the Johnsons’ nuisance claim, to the extent it

App. 43 is not based on 7 C.F.R. § 205.202(b), remains viable. Because the Johnsons still have a viable nuisance claim, and an injunction is a potential remedy for a nuisance, we hold that the district court erred when it dismissed the Johnsons’ request for permanent injunctive relief. III. We turn next to the district court’s denial of the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents of pesticide drift. The legal theories in the proposed amended complaint are identical to the original complaint, but the Johnsons allege damages, including the inconveniences just mentioned, unique to the 2008 incidents. The district court denied the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents because “amendment would be futile.” This ruling was based on the court’s conclusions that Minnesota does not recognize a claim for trespass by particulate matter and that the Johnsons could not prove any negligence per se or nuisance damages based on 7 C.F.R. § 205.202(b). We review a district court’s denial of a motion to amend a complaint for an abuse of discretion. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004). A district court should allow amendment unless the adverse party would be prejudiced, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), but the court does not abuse its discretion

App. 44 when it disallows an amendment where the proposed amended claim could not survive summary judgment, Rosenberg, 685 N.W.2d at 332. As discussed above, the Johnsons’ 2007 trespass claim and claims based on 7 C.F.R. § 205.202(b), fail as a matter of law and therefore amending the complaint to include identical claims based on the 2008 incidents would be futile. To the extent that the Johnsons’ proposed amended complaint includes such claims, the district court properly denied the Johnsons’ motion to amend. But to the extent that the amended complaint alleges claims for the 2008 incidents that are not based in trespass or on 7 C.F.R. § 205.202(b), we hold that the district court abused its discretion by denying the motion to amend without first considering whether such amended claims could survive summary judgment. See Rosenberg, 685 N.W.2d at 332. IV. In summary, we conclude that the Johnsons’ trespass claim, and nuisance and negligence per se claims based on 7 C.F.R. § 205.202(b), fail as a matter of law. To the extent that the court of appeals’ decision would reinstate those claims and allow the Johnsons to amend their complaint to include those claims for the 2008 incidents of pesticide drift, we reverse. But we conclude that the district court erred in (1) dismissing the Johnsons’ nuisance and negligence per se claims to the extent those claims are not based on 7 C.F.R.

App. 45 § 205.202(b), and (2) denying the Johnsons’ motion to amend their complaint to include claims for the 2008 incidents to the extent those claims are not based on trespass or 7 C.F.R. § 205.202(b). Affirmed in part, reversed in part, and remanded.

DISSENT PAGE, Justice (dissenting). I respectfully dissent. I. The court holds that Minnesota does not recognize claims for trespass by particulate matter. I disagree with the breadth of the court’s holding. The term “particulate matter” encompasses a variety of substances, but the court’s one-size-fits-all holding that particulate matter can never cause a trespass fails to take into account the differences between these various substances. The Environmental Protection Agency defines “particulate matter” as “a complex mixture of extremely small particles and liquid droplets” “made up of a number of components, including acids (such as nitrates and sulfates), organic chemicals, metals, and soil or dust particles.” United States Envtl. Prot. Agency, http://www.epa.gov/pm/ (last updated June 28, 2012). Some particles are sufficiently large or dark to be observable, “such as dust, dirt, soot, or smoke.” United States Envtl. Prot. Agency, http:// www.epa.gov/pm/basic.html (last updated June 15,

App. 46 2012). In terms of size, the largest “inhalable coarse particles” are 10 micrometers in diameter; that is one-seventh the diameter of a strand of human hair. Id. It seems to me that differences in size, quantity, and harmfulness of varying types of particulate matter will have an effect on whether the invasion by the substance causes a trespass. For example, if someone causes harmful dust to enter a person’s land and that dust settles on the person’s land and interferes with the owner’s possession of the land, it would seem that a trespass has occurred. However, if that person were to cause car exhaust, which presumably dissipates quickly in the air, to enter a person’s land, it would seem that a trespass would not occur. The distinction between trespass and nuisance should not be based on whether the object invading the land is tangible or intangible. Whereas that distinction may have been logical at times when science was not as precise as it is now, that distinction is not sound today. See, e.g., Martin v. Reynolds Metals Co., 342 P.2d 790, 793 (Or. 1959) (suggesting that one explanation for the historical adherence to a distinction between tangible and intangible invasions of land was that “science had not yet peered into the molecular and atomic world of small particles”). We have previously held that invasion by water constitutes a trespass and invasion by a bullet constitutes a trespass. Greenwood v. Evergreen Mines Co., 220 Minn. 296, 311-12, 19 N.W.2d 726, 734-35 (1945) (water); Whittaker v. Stangvick, 100 Minn. 386, 391, 111 N.W. 295, 297 (1907) (bullets and fallen game). It is a small extension, if any, of those holdings to conclude that

App. 47 invasion by pesticide can constitute a trespass, especially because pesticides are designed to affect the land, unlike an invasion by a bullet, which creates no such risk. The proper distinction between trespass and nuisance should be the nature of the property interest affected. See Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala. 1979) (“Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is ‘tangible’ or ‘intangible.’ Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies.”); see also J.D. Lee & Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation § 38:1 (2d ed. 2006) (“The distinction between nuisance and trespass is in the difference in the interest interfered with: in a nuisance action it is the use and enjoyment of land, while the interest in a trespass action is the exclusive possession of land.”). As other courts have suggested, the same conduct may constitute both trespass and nuisance. See Borland, 369 So. 2d at 527 (noting, “the same conduct on the part of a defendant may, and often does, result in the actionable invasion of ” exclusive possession of the property and use and enjoyment). Thus, while the court concludes that invasion by an intangible object never interferes with a property owner’s possessory rights, I conclude that in some circumstances it may,

App. 48 particularly when that intangible object is actually a substance that settles on the land and damages it. See id. at 530 (“[I]f, as a result of the defendant’s operation, the polluting substance is deposited upon the plaintiff ’s property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass. . . .”); cf. Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 791 (Wash. 1985) (“When airborne particles are transitory or quickly dissipate, they do not interfere with a property owner’s possessory rights and, therefore, are properly denominated as nuisances.”). Rather than adopt a categorical conclusion that particulate matter can never cause a trespass, I conclude, as discussed above, that it may constitute a trespass under some circumstances. Here, on the record presented at this stage in the litigation, it is not clear to me whether the pesticides in this case constituted a trespass. Therefore, I would allow the suit to go forward and permit the record to be developed to resolve that question. II. I also dissent from the court’s interpretation of 7 C.F.R. § 205.202(b) (2012). That regulation reads: “Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic,’ must: . . . (b) Have had no prohibited substances, as listed in § 205.105, applied to it for a

App. 49 period of 3 years immediately preceding harvest of the crop[.]” The court concludes that this regulation does not apply to the alleged conduct here because a pesticide is not “applied to” a farm if its presence is caused by drift, as opposed to being directly applied by the organic farmer. Our rules of statutory interpretation (which we apply to regulations) do not permit us to add words to a regulation whether the words were “purposefully omitted or inadvertently overlooked.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 760 (Minn. 2010). Rather, when we interpret a rule, we consult “the language itself, the specific context in which that language is used, and the broader context of the [rule] as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). In this case, the court concludes that the OFPA’s focus on producers and handlers of organic products informs its interpretation that “applied to” in section 205.202(b) refers only to application of pesticides by the organic farmer. This conclusion flies in the face of our rules of construction as well as common sense. First, the language of section 205.202(b) is silent with respect to who applied the prohibited substances. The plain language of the phrase – “Any field or farm parcel . . . must: . . . (b) Have had no prohibited substances . . . applied to it” – indicates that the concern is what the land in question was exposed to, not how it was exposed, why it was exposed, or who caused the exposure. Moreover, use of the passive voice generally indicates the focus of the language is “whether something happened – not how or why it

App. 50 happened.” Dean v. United States, 556 U.S. 568, 572 (2009). Further, numerous regulations in Title 7, Part 205, explicitly govern the behavior of producers and handlers. See 7 C.F.R. § 205.200 (2012) (“The producer or handler . . . must comply with the applicable provisions. . . .”); 7 C.F.R. § 205.201(a) (2012) (“The producer or handler . . . must develop an organic production or handling system plan. . . .”); 7 C.F.R. § 205.203(a) (2012) (“The producer must select and implement tillage and cultivation practices. . . .”); 7 C.F.R. § 205.203(b) (2012) (“The producer must manage crop nutrients and soil fertility. . . .”); 7 C.F.R. § 205.203(c) (2012) (“The producer must manage plant and animal materials. . . .”). The distinct language in section 205.202(b) is striking in comparison to these provisions. In contrast to the provisions that specifically regulate the behavior of producers, the language in section 205.202(b) focuses on a characteristic of the field and does not refer to the producer, handler, or farmer. While section 205.202(a) implicitly references producers and handlers, by referring to provisions that specifically prescribe their conduct, section 205.202(b) does not do so in any way. Evidently, under the court’s reading of the regulations, if a third party intentionally applies a prohibited pesticide to an organic farm field in a quantity sufficient to leave a residue that violates the regulation, 7 U.S.C. § 6511(c)(2)(A) (2006) would not prohibit the product’s sale as an organic product because the producer had not applied the prohibited pesticide.

App. 51 See 7 U.S.C. § 6511(c)(2)(A) (prohibiting the sale of a product as organic if, upon inspection, it is determined that pesticide or nonorganic residue is present as a “result of intentional application of a prohibited substance”). 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. Therefore, I dissent.

App. 52 STATE OF MINNESOTA IN COURT OF APPEALS A10-1596 A10-2135 Oluf Johnson, et al., Appellants, vs. Paynesville Farmers Union Cooperative Oil Company, Respondent. Filed July 25, 2011 Reversed and remanded Ross, Judge Stearns County District Court File No. 73-CV-09-5042 Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., Plymouth, Minnesota (for appellants) Kevin F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., St. Cloud, Minnesota (for respondent) Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Harten, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

App. 53 SYLLABUS Chemical pesticide drifting from one farm to another because of errant overspray may constitute trespass. 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.

App. 54 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
The cooperative was cited four times by the Minnesota Department of Agriculture for violating pesticide laws, which make it illegal to “apply a pesticide resulting in damage to adjacent property,” Minn. Stat. § 18B.07, subd. 2(b) (2010), and to spray (Continued on following page)
1

App. 55 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 herbicidetainted 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

pesticide in a manner “inconsistent with a label or labeling,” Minn. Stat. § 18B.07, subd. 2(a)(1) (2010). Pesticide labels generally prohibit use when the wind is in excess of five miles per hour. The MDA found that the cooperative repeatedly applied pesticide on windy days.

App. 56 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,

App. 57 prohibiting the cooperative from spraying within onequarter 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?

App. 58 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

App. 59 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

App. 60 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 under Minnesota law. See id. (holding that Minnesota law “has not recognized trespass by particulate matter”); The American Heritage Dictionary of the English Language 1282 (4th ed. 2000) (defining particulate matter as “[m]aterial suspended in the air in the form of minute solid particles or liquid droplets, especially when considered an atmospheric pollutant”). But nothing in our Wendinger analysis indicates that we intended the term “particulate matter” to define a unique category of physical substances that can never constitute a trespass. Our holding in Wendinger, rejecting the contention that an inactionable odor-based trespass claim is converted into an actionable claim simply because of an odorous fume’s nature as a physical substance, is of no controlling force here. Unlike the plaintiffs in Wendinger, the Johnsons do not claim trespass based on transient odors. Instead, they primarily complain that the liquid chemicals that the cooperative sprayed into the air from neighboring fields drifted, landed, and remained on the Johnsons’ organic crops in detectable form, contaminating them. And while wafting odors will not affect the composition of the land, a liquid chemical pesticide or

App. 61 herbicide being sprayed for agricultural purposes will; by design, it descends and clings to soil or plants, killing organisms. Although neither Wendinger nor other Minnesota cases have directly addressed the issue, the reasoning underlying decisions in similar neighbor-liability cases leads us to conclude that chemical pesticide drift can constitute a trespass. The supreme court has explained that “the intentional throwing of [an object] upon [another’s] property would constitute a trespass.” Victor v. Sell, 301 Minn. 309, 313, 222 N.W.2d 337, 340 (1974). It has also recognized that a landowner owes a general duty “to adjoining or nearby premises” and observed that the duty leads to “liability [being] regularly imposed in cases concerning pesticide spray that drifted and killed bees” on neighboring land. Anderson, 693 N.W.2d at 187. We have affirmed as factually supported a negligence judgment against a crop duster after its negligent spraying of herbicides resulted in chemical drift from target fields onto a neighboring field, damaging crops. Red River Spray Service, Inc. v. Nelson, 404 N.W.2d 332, 334 (Minn. App. 1987). And we have held that errant bullets shot onto another’s property constitutes a trespass. Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 805 (Minn. App. 2001). The more specific trespass cases in other with our holding today. Sanders Lead Co., Inc., holdings in chemical-drift jurisdictions are consistent For example, in Borland v. the Alaska Supreme Court

App. 62 recognized that lead particulates and sulfoxide can constitute trespass, reasoning that “if, as a result of the defendant’s [smelting] operation, the polluting substance is deposited upon the plaintiff ’s property, thus interfering with his exclusive possessory interest by causing substantial damage to the Res, then the plaintiff may seek his remedy in trespass.” 369 So. 2d 523, 525, 530 (Alaska 1979). And similarly, the Washington Supreme Court held in Bradley v. American Smelting and Refining Co. that arsenic and cadmium particles emitted from a smelting plant and landing on the plaintiffs’ land could also constitute a trespass. 709 P.2d 782, 786-90 (Wash. 1985). We recognize that we expressly distinguished Borland and Bradley in our discussion in Wendinger and characterized them as examples of cases in which other jurisdictions, unlike Minnesota, had recognized trespass actions by particulate matter. 662 N.W.2d at 550. Our decision in Wendinger rightly rejected the theory that odors alone can constitute trespass in Minnesota, but our citing to Borland and Bradley was unnecessary to that holding and, as a practical matter, our assessment of them was a bit adrift. Both those cases and this one, unlike Wendinger, involved the dispersion of substances that entered into and settled onto land in discernable and allegedly damaging deposits. And both those cases and this one, unlike Wendinger, involve a substantive invasion in which the deposited thing – not merely vaporous and dissipating odors – are the source of the injury arising out of the alleged trespass.

App. 63 In sum, we disagree with the district court that chemical pesticide drift cannot, because of its nature, constitute a trespass. The errant dispersion of pesticides, which contain chemicals designed to affect the land, can interfere with possession. We need not address the cooperative’s plausible assertion that incidental and negligible overspray during agricultural application is inevitable, and therefore not actionable. We address only the allegations here, which go beyond inconsequential overspray or odor-related intrusion. We hold that 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 during application directed at another. The district court therefore erred by concluding that the Johnsons’ trespass claim fails as a matter of law. II We next address the district court’s conclusion that the Johnsons failed to allege damages, an essential element of their nuisance and negligence-per-se claims. See Minn. Stat. § 561.01 (2010) (stating that a nuisance action “may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance”); Anderson, 693 N.W.2d at 189-91 (requiring damages for a negligenceper-se action). To defeat a summary judgment motion, the opposing party must make a showing sufficient to establish each essential element. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). This showing is

App. 64 made if it includes evidence that would allow a reasonable factfinder to conclude that the element has been proven. Schroeder v. St. Louis Cnty., 708 N.W.2d 497, 507 (Minn. 2006). The district court concluded that the Johnsons failed to present prima facie evidence of damages caused by the pesticide drift. It reasoned, “[A]s there is no evidence that chemical residue tests performed on the plants . . . exceeded the 5% tolerance limits established [under the federal organic-certification regulations], produce from these plants could have been sold as ‘organic.’ ” We review the district court’s interpretation of the organic-certification regulation de novo. See Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 638 (Minn. 2006). The district court inferred too much from the regulation. The regulation, as part of the organiccertification regulation scheme of the National Organic Program (NOP), limits the circumstances in which farmers may label and sell produce as “organic.” Only produce that meets strict NOP standards may be certified as organic. 7 C.F.R. §§ 205.100, .102, .300 (2011); see also Minn. Stat. § 31.925 (2010) (adopting the federal Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501-6523, and the associated federal regulations in NOP, 7 C.F.R. § 205, as the “organic food production law” of Minnesota). The regulations require farmers to develop detailed production and handling practices that prevent the commingling of organic and nonorganic foods. 7 C.F.R. § 205.201; see also § 205.272 (requiring the farmer to “implement

App. 65 measures necessary to prevent the commingling of organic and nonorganic products and protect organic products from contact with prohibited substances”). The operative regulation here requires that “[a]ny field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic’ must . . . [h]ave had no prohibited substances . . . applied to it for a period of 3 years immediately preceding harvest of the crop.” § 205.202(b) (emphasis added). This regulation is at the heart of the Johnsons’ claim for damages; they argue that the pesticides were prohibited substances that were “applied to” their field during the cooperative’s overspraying, preventing them from selling their crops on the organic market. The argument is persuasive. The cooperative’s counter position, which is that “applied to” does not include unintended residual drift from overspray, is belied by the express language of the regulation. The phrase “applied to” is not defined in the regulations, but we hold that it implicitly includes unintentional pesticide drift. The regulations refer to the “unintended application of a prohibited substance,” § 205.202(c) (emphasis added), and they also refer to the “[a]pplication, including drift, of a prohibited substance,” § 205.400(f)(1) (emphasis added). Reading each provision of the regulation as an integrated whole, we therefore deduce that the phrase “applied to” refers to “applications” and that “applications” include even each “unintended application” and that the “application” of a prohibited substance includes

App. 66 “drift” onto a nontargeted field. We hold that the phrase “applied to” in section 205.202(b) includes drift as an unintentional application of pesticide. The cooperative points to section 205.671 to urge a different holding. That section states only that if “residue testing detects prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency’s tolerance for the specific residue detected or unavoidable residual environmental contamination, the agricultural product must not be sold, labeled, or represented as organically produced.” (Emphasis added). The regulation says nothing about what should happen if the residue testing shows less than five-percent contamination. But the cooperative assumes, and the district court concluded, that it is automatically cleared for sale as organic. We recognize that the assumption has some support from the following general commentary on the regulation: The presence of a detectable residue of a product of excluded methods alone does not necessarily constitute a violation of this regulation. As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods as detailed in their approved organic system plan, the unintentional presence of the products of excluded methods should not affect the status of an organic product or operation. National Organic Program, 65 Fed. Reg. 80,548, 80,556 (Dec. 21, 2000) (codified at 7 C.F.R. 205). But

App. 67 interpreting the regulation to allow for an automatic under-five-percent safe harbor for drift ignores this additional, more specific commentary: The ‘5 percent of EPA tolerance’ standard is considered a level above which an agricultural product cannot be sold as organic, regardless of how the product may have come into contact with a potential prohibited substance. This standard has been established to: (1) satisfy consumer expectations that organic agricultural products will contain minimal chemical residues and (2) respond to the organic industry’s request to implement a standard comparable to current industry practices. However, the ‘5 percent of EPA tolerance’ standard cannot be used to automatically qualify agricultural products as organically produced, even if the level of chemical residues detected on an agricultural product is below 5 percent of the EPA tolerance for the respective prohibited substance. Id. at 80, 629 (emphasis added). We do not speculate as to the Johnsons’ damages, but we hold that the district court erroneously rejected their claims for lack of damages on the ground that, by virtue of there having been no finding of fivepercent contamination, no damages could be proven. Because the regulations and commentary fail to expressly state what happens if drift causes a less-thanfive-percent contamination to an organic farm, we assume that the certifying agent has the discretion to decertify or not decertify the field. See C.F.R.

App. 68 § 205.662(a), (c) (providing that if an investigation by a certifying agent “reveals any noncompliance” with NOP regulations, a written notice of noncompliance shall be sent to the certified operation, and that this notice can lead to revocation or suspension of certification (emphasis added)). We add that the Johnsons alleged other damages not considered by the district court. They alleged that the drift has caused “substantial inconveniences” because they are required to report the contamination and it affects their crop rotations, organic-farm planning, and record keeping. They asserted separately that some of the chemicals, presumably fertilizers, enhanced weed growth. They asserted that they had to remove some fields from production. And they alleged that the overspray forced them to destroy some of their crops. Because these identify at least potential bases to recover damages, see Highview N. Apartments v. Cnty. of Ramsey, 323 N.W.2d 65, 73 n.6 (Minn. 1982) (permitting recovery for items lost in flooding, replacement of items, and the “owner’s time in coping with the water problems” caused by nuisance), the district court erred by granting summary judgment without addressing them. Because the district court erred by finding no damages were shown by the Johnsons, we reverse the dismissal of the Johnsons’ nuisance and negligenceper-se claims.

App. 69 III We turn to the district court’s denial of the Johnsons’ motion to amend their complaint to add claims arising out of the 2008 drift. We review the district court’s denial of a party’s motion to amend a complaint for abuse of discretion. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004). A party may amend a responsive pleading that has been served if that party has leave of the court, and leave “shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. A district court should permit amendments unless it finds that the adverse party would be prejudiced. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But the district court should deny a motion to amend a complaint when the proposed claim could not survive a summary-judgment motion. Rosenberg, 685 N.W.2d at 332. Here, the district court concluded that the Johnsons’ amendments adding the 2008 claims would not withstand summary judgment for the same reasons that the 2007 claims for trespass, negligence per se, and nuisance failed. Because the district court erroneously concluded that the Johnsons’ 2007 claims cannot withstand summary judgment, the district court erred by refusing to allow the Johnsons to amend their complaint to add the claims related to the 2008 overspray.

App. 70 IV We last address the district court’s denial of the Johnsons’ permanent injunction request. We review the district court’s decision whether to grant an injunction for abuse of discretion. Highview, 323 N.W.2d at 73. And we rely on the district court’s findings unless they are clearly erroneous. Haley v. Forcelle, 669 N.W.2d 48, 55 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003). The Johnsons sought an injunction under the nuisance statute, Minnesota Statutes section 561.01. This statute has been held to require “harm” to the plaintiff and “wrongful conduct” by the defendant. Highview, 323 N.W.2d at 70. The district court initially issued a temporary injunction, but after dismissing the Johnsons’ claims on the merits, it vacated that injunction and denied the Johnsons’ request for a permanent injunction. In doing so, it found that there was no harm to the Johnsons and no “wrongful conduct” by the cooperative. These findings were based exclusively on the predicate findings that the Johnsons failed to allege damages. Because those rest on erroneous conclusions of law, the district court’s reason for denying the injunction fails. We therefore reverse the denial without prejudice for further consideration of the injunction on remand, offering no opinion about the merit of any other arguments for or against its issuance.

App. 71 DECISION We reverse the district court’s summary judgment order dismissing the Johnsons’ trespass claim because pesticide drifting onto the Johnsons’ farm may have constituted a trespass. We reverse the dismissal of their nuisance and negligence-per-se claims because the dismissal resulted from a misreading of the five-percent-contaminant regulation and the consequently erroneous holding that the Johnsons failed as a matter of law to show any damages. And we reverse the denial of the Johnsons’ motion to amend their complaint and of their request for a permanent injunction because both denials were based on the same mistaken legal conclusions. We remand for further proceedings arising from the reversal. Reversed and remanded.

App. 72 STATE OF MINNESOTA COUNTY OF STEARNS Oluf Johnson and Debra Johnson Plaintiffs, vs. Paynesville Farmers Union Cooperative Oil Company, Defendant. The above-entitled matter came on for hearing before the Honorable Kris H. Davick-Halfen, Judge of District Court, on the 26th day of August, 2010, Attorney Arlo H. Vande Vegte and Attorney Harry E. Burns appeared on behalf of Plaintiffs Oluf Johnson and Debra Johnson, Attorney Kevin F. Gray appeared on behalf of Defendant Paynesville Farmers Union Cooperative Oil Company. NOW, having duly considered the arguments and memoranda of counsel, the documents and proceedings herein, together with the applicable law, this Court makes as its: ORDER 1. THAT, based on this Court’s Order dated July 16, 2010, Plaintiffs’ claim of private nuisance, including any claim for injunctive relief, is hereby DISMISSED; COURT FILE NO. 73-CV-09-5042 ORDER (Filed Nov. 4, 2010) IN DISTRICT COURT SEVENTH JUDICIAL DISTRICT

App. 73 2. 3. THAT, the Temporary Injunction in the aboveentitled matter is hereby VACATED; and THAT, Defendant’s motion for costs and disbursements is GRANTED in its entirety,
BEING NO JUST REASON FOR DELAY, LET JUDG-

THERE

MENT BE ENTERED ACCORDINGLY.

BY THE COURT: Dated: this 4th day of November, 2010. /s/ Kris H. Davick-Halfen Kris H. Davick-Halfen Judge of District Court

JUDGMENT I hereby certify that the foregoing Order/Conclusions of Law constitutes that Judgment of the Court. Dated: 11-4-10 Timothy Roberts, Court Administrator Katie B Deputy

App. 74 STATE OF MINNESOTA COUNTY OF STEARNS Oluf Johnson and Debra Johnson Plaintiffs, vs. Paynesville Farmers Union Cooperative Oil Company, Defendant. The above-entitled matter came on for hearing before the Honorable Kris H. Davick-Halfon [sic] Judge of District Court, on the 29th day of April, 2010 upon Defendant’s Motion for Summary Judgment and Plaintiffs’ Motion to Amend Complaint. Attorney Arlo H. Vande Vegte appeared on behalf of Plaintiffs Oluf Johnson and Debra Johnson. Attorney Kevin F. Gray and Attorney Matthew W. Moahrie appeared on behalf of Defendant Paynesville Farmers Union Cooperative Oil Company. NOW, having duly considered the arguments and memoranda of counsel, the documents and proceedings herein, together with the applicable law, this Court Makes as its: ORDER 1. THAT, Defendant’s Motion for Summary Judgment is hereby GRANTED in its entirely; COURT FILE NO. 73-CV-09-5042 ORDER (Filed Jul. 16, 2010) IN DISTRICT COURT SEVENTH JUDICIAL DISTRICT

App. 75 2. THAT, as they are barred by Minn. Stat. § 541.07’s two-year statute of limitations, Plaintiffs’ claims regarding the 2005 incident shall be DISMISSED with prejudice. THAT, since Minnesota law does not recognize trespass by particulate matter, Plaintiffs’ claim of trespass shall be DISMISSED with prejudice. THAT, Plaintiffs’ claim of private nuisance shall be DISMISSED with prejudice. THAT, Plaintiffs’ claim of negligence per se shall be DISMISSED with prejudice. THAT, as there is no evidence of the requisite intent, Plaintiffs’ claim of battery shall be DISMISSED with prejudice. THAT, Plaintiffs’ Motion to Amend Complaint to add new factual and legal claims for events occurring in 2008 is DENIED in its entirely. THAT, Plaintiffs’ Motion to Amend Complaint in add to claim for punitive damages is DENIED in its entirety. THAT, the attached MEMORANDUM is hereby incorporated into and made a part of this ORDER as if fully set forth herein.
BEING NO JUST REASON FOR DELAY, LET JUDG-

3.

4. 5. 6.

7.

8.

9.

THERE

MENT BE ENTERED ACCORDINGLY.

BY THE COURT: Dated: this 16th day of July, 2010. /s/ Kris H. Davick-Halfen Kris H. Davick-Halfen Judge of District Court

App. 76 JUDGMENT I hereby certify that the foregoing Order/Conclusions of Law constitutes that Judgment of the Court. Dated: 2-16-10 Timothy Roberts, Court Administrator By: Cheryl B. Deputy

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