The laws in both Minnesota and Wisconsin require pesticide applicators to take steps to prevent chemical drift. Minnesota’s pesticide law provides, “A person may not apply a pesticide resulting in damage to adjacent property,” (Minn. Stat 18B.07). In Wisconsin, the state pesticide regulations are even more explicit: “No person may use or direct the use of a pesticide in a manner that results in pesticide overspray or significant pesticide drift,” (ATCP 29.50). This law defines “significant” to mean that enough pesticide has moved off target to harm or potentially harm people, property, or the environment or be readily visible.
The law is clear: the applicator is responsible if and when chemical drift occurs and it causes harm. However, farmers face a long and unreliable road when seeking to recover any damages.
State agencies investigate and issue penalties, but do not provide compensation for damages to crops
The Minnesota Department of Agriculture’s (MDA) Pesticide & Fertilizer Management Division handles chemical drift investigations. In Wisconsin, the Department of Agriculture Trade and Consumer Protection (DATCP) handles such investigations.
If a farmer believes that drift may have occurred, she can file a complaint with the state agency. An inspector or enforcement specialist will conduct a full investigation, including talking to both the farmer and the applicator as well as other witnesses, taking samples from the farm, and examining the applicator’s records. These investigations can take up to six months.
The agencies are authorized to issue financial penalties if they conclude the applicator violated pesticide laws. They will also help answer questions and provide information about the investigation. However, except for bee kills in Minnesota, the state agencies do not seek compensation for farmers for any damages.
Beekeepers in Minnesota can seek compensation from the MDA for bee kills
In Minnesota, $150,000 of state funding per year has been made available to compensate farmers for bee kills caused by pesticides. To be eligible for these funds, beekeepers must be registered with BeeCheck (https://beecheck.org/), a hive mapping registry administered by FieldWatch. If a bee kill caused by chemical drift is suspected, the beekeeper must file a written complaint with the MDA. The MDA will then conduct a thorough investigation and if all of the criteria are met, the beekeeper will be asked to complete a compensation claim form.
Wisconsin has recently adopted the Wisconsin Pollinator Protection Plan, which includes a list of recommendations or standards for avoiding chemical drift. The recommendations are voluntary and, as of yet, no funds are earmarked to compensate farmers for bee kills.
Farmers must seek recovery for crop and other damages on their own
Bottom line, farmers are entitled to compensation from the applicator for any damages resulting from chemical drift. The trouble is getting it. It’s highly unlikely that the applicator will show up at the door and offer to pay for any losses themselves. Best case scenario, the farmer could try to work out a settlement. Most likely, this will be done through the applicator’s insurance provider. Otherwise, the farmer could file a lawsuit. With that said, lawsuits involving chemical drift are time consuming and costly. Moreover, a favorable outcome is unreliable. The outcome often turns on idiosyncrasies in the law and very nuanced facts.
Chemical drift lawsuits typically involve one or more of four main claims: Trespass, nuisance, negligence per se, and negligence. Oftentimes lawyers will include all of these claims in a lawsuit, as one never knows what will actually stick once all the evidence is presented.
Notably, the Minnesota Supreme Court has ruled out trespass claims for cases involving chemical drift in Minnesota, see Johnson v. Paynesville Farmers Union Cooperative Oil Co., 817 N.W.2d 693 (Minn. 2012). Other courts in the country have come to similar results, and the Wisconsin courts could very well follow suit. In Johnson, however, the Minnesota Supreme Court did conclude that negligence and nuisance claims could be pursued.
To prevail in a chemical drift lawsuit a farmer must provide evidence of actual damages and ideally that the applicator acted negligently
Without getting steeped in the intricate details of the potential legal claims, the overarching takeaway message for farmers is that to prevail in a lawsuit the farmer generally must present solid evidence that she incurred actual, tangible damages. Damages could include destroyed crops, lost sales, costs incurred from health impacts, recordkeeping and other burdens in connection to the investigation, costs required to undergo extra measures to control weeds, and so on. The mere presence of pesticide residue alone would likely not be enough.
1. Damages from taking crops out of organic production may not be recoverable
Organic farmers must take special note that in Johnson, the Minnesota Supreme Court concluded that damages from loss of organic certification and taking crops out of production are not recoverable in a chemical drift case. That’s because the court interpreted the National Organic Program (NOP) regulations governing pesticide contamination and organic certification—namely 7 C.F.R. § 205.202(b)—to not apply when contamination is caused by drift, as opposed to the intentional application by the farmer. The Johnson case was brought by organic farmers who detected pesticide levels from chemical drift on their organic crops. A certifying agent from the Organic Crop Improvement Association (OCIA) told them that they had to take their organic crops out of production and revert their transitional crops back to the beginning. The farmers did exactly that and obviously incurred damages as a result. However, the court disagreed with the OCIA certifying agent’s interpretation of the NOP regulations. The court concluded that these steps weren’t required by law. In other words, because it wasn’t necessary to take the crops out of production, the farmer couldn’t recover related damages.
The lesson here for organic farmers is to not presume that organic crops must be taken out of production if they are damaged from chemical drift. The farmer should seek clarification from the certifying agent. The farmer could also challenge a certifying agent’s decision to withdraw certification or require organic crops to be removed from production if it feels appropriate. Otherwise, the farmer might not be able to recover any resulting damages.
2. It’s helpful to show the applicator acted negligently
In addition to actual damages, ideally a farmer would be able to show that the applicator acted negligently—or failed to act like a reasonable person would in similar circumstances. An applicator may be found negligent if, for example, she applied the pesticides on an extremely windy day or in amounts above and beyond what are generally used, if the crop duster missed the target crop, and so on. Part of acting negligently may include that the applicator should have taken special care because she knew that the adjacent property was certified organic.
