FLAG Urges Supreme Court to Overturn Minnesota Ruling on Drift

By CnAgri Print

Representing Minnesota organic farmers Oluf and Debra Johnson, Farmers' Legal Action Group, Inc. (FLAG), has filed a Petition for Writ of Certiorari asking the U.S. Supreme Court to overturn part of a Minnesota Supreme Court ruling that decreases the integrity of the organic food chain by allowing increased pesticide contamination on organic farmland.

On August 1, 2012, 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 prohibited chemical substances (such as pesticides and herbicides) unless testing reveals chemical residues at certain levels. In the petition, the Johnsons argue that federal law allows organic certifying agents to decertify organic fields due to the drift of prohibited substances (e.g., chemical pesticides and herbicides) caused by a third party (e.g., a commercial pesticide applicator). The Johnsons assert that the Minnesota Supreme Court's decision misunderstood the U.S. Department of Agriculture National Organic Program regulations and framework.

In 2005, 2007, and 2008, the Johnsons' organic certifier had decertified their organic fields due to contamination from pesticide overspray caused by commercial pesticide applicator Paynesville Farmers Union Cooperative Oil Company, the defendant in this case. When the Johnsons sued the company for damages caused by the overspray, including crop losses and monetary losses from the decertification of the organic crop, the Minnesota Supreme Court held that the company was not responsible for damages related to decertification because the organic certifying agent was wrong to decertify the Johnsons' organic farmland.

"The Minnesota decision produced a Catch-22 for farmers who are victims of pesticide drift," said FLAG Staff Attorney Amanda N. Heyman, who authored the petition. "USDA says organic farmers must take contaminated fields out of organic production for three years and forfeit the higher organic market price. But the Minnesota Supreme Court says that these same farmers can't recoup financial losses from the companies who damage organic farming businesses by overspraying chemicals. This decision is both unfair and wrongly decided."

The Minnesota Supreme Court decision, according to the Johnsons, creates a diminished standard for toxic chemical contamination of USDA-certified organic products in Minnesota compared to other states and foreign nations. The focus on producing food without the chemicals that inundate conventional agriculture is one of the cornerstones of the USDA organic program, and is the reason domestic and foreign consumers spend over $31 billion 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.

The Johnsons' petition focuses solely on the Minnesota Supreme Court's interpretation of the federal National Organic Program regulation regarding pesticide drift on organic farmland. The petition does not seek to overturn the Minnesota Supreme Court's ruling that pesticide drift cannot constitute trespass.