Thursday, September 22, 2011

Farmville (Part II): Gone with the wind

Greetings from the farm! This past weekend, I spent time at my grandparents' ranch. My grandparents have lived on the same street on the outskirts of our micropolitan town for 45 years. The street is predominantly farmland with a few homes scattered between orchards.

My grandparents!

Where the backyard ends and their orchard begins. Most of the homes on my grandparents' street are tucked into orchards.

To the left of my grandparents' home is another house. This neighbor moved to the street about a year ago. Since he moved in, the neighbor has complained that the pesticides my grandfather uses drift onto his property. The neighbor has threatened my grandparents with litigation claiming the pesticide drift is a nuisance and constitutes trespass.

The neighbor's home in proximity to my grandparent's ranch is too close for comfort.

In property law there is the "moving to the nuisance" doctrine. This means if one were to purchase a home next to a nuisance, such as a noisy and smelly factory, the purchaser should be aware of the noises and odors when they buy the home. Since the purchaser "moved to the nuisance," there is no legal cause of action for the noises and smells emitted from the factory. The reasoning behind the doctrine is that it is unfair for the owners of the noisey and smelly factory to have neighbors move next to them, knowing full well of the business operations, and then complain afterwards. My grandfather's situation is a classic example of moving to a nuisance. The neighbor knew he was moving onto a street with orchards and ranchers who use pesticides.

Additionally, California courts have also found that "nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." Jacobs Farm/Del Cabo, Inc. v. W. Farm Serv., Inc., 190 Cal. App. 4th 1502 (Cal. Ct. App. 2010) Since my grandpa is spraying the pesticides correctly, it seems the neighbor does not have a viable cause of action for nuisance.

The neighbor's home is surrounded by orchards. He therefore "moved to the nuisance"

In July, a Minnesota court determined that pesticide over spray drift to a neighboring property may now qualify as trespass. In the case, an organic farmer contended his neighbor's pesticide drift caused his farm to lose its organic certification. The court found, in this instance, that pesticide drift could constitute as trespass. It will be interesting to see if other states follow Minnesota's precedent.

Currently in California the two important statutes relating to pesticides are California Food and Agriculture sections 12972/73. The statutes read:

"The use of pesticides by any person shall be in such a manner as to prevent substantial drift to non-target areas" and
"The use of any pesticide shall not conflict with labeling registered pursuant to this chapter which is delivered with the pesticide or with any additional limitation applicable to the conditions of any permit issued by the director or commissioner."

California courts have defined "substantial drift" as severe mismanagement of pesticides. In one case, a woman was sitting in the comfort of her home when a farmer, ignoring the directions and regulations of the pesticides he was using, encased her home in a fog of pesticides. These pesticides physically injured her. Patterson Flying Serv. v. California Dept. of Pesticide Regulation, 161 Cal. App. 4th 411 (2008)

From the court's reasoning in these cases, it seems pesticide drift can constitute as trespass only if an extremely negligent farmer causes a substantial decrease in business profits or physical injuries occur. Even with the Minnesota case, the law still seems to be on the side of the farmer.

In the case of my grandparents, the commissioner visited the street to observe the neighboring farmers and my grandpa's spraying methods. The commissioner found the farmers on the street, including my grandpa, were using the pesticides within regulation and there was no substantial pesticide drift. Along with the commissioner's report, the leading legal cases and statutes indicate the neighbor's trespass claim is gone with the wind...


oceguera said...

Its interesting to see how courts will continue to determine the role of family farmers in cases of pesticide drift.I imagine that bigger crop fields that produce for corporate ag will also fight hard to keep regulations loose on the issue. This reminds me of the Canada farmer being sued by Monsanto. The corporation claimed that the small family farmer owed the company for using their seeds. The monsanto seeds however were invading his fields through drift.

ScottA. said...

Another interesting twist is the increasing switch from conventional farming to organic farming and the drift rulings. What would have happened if your grandparents neighbor owned the land surrounding his house and he decided to grow organic fruit?

It's an issue that will be probably go back and forth for many years to come.

But I love the gall of the guy. May I venture a guess that the new owner isn't from a rural area?

hgill said...

I remember hearing about that case with Monsanto but I don't remember the details. A quick google search did not help because it seems Monsanto likes to sue a lot of people. Do you remember the details of the case?

Scott, the neighbor is from our community. Since he is from the town, he cannot argue he does not know standard farm practices of the area. Your comment on organic fruit is spot on with the Minnesota ruling I discussed. In the case, the organic farmer showed how he lost profits when his farm was no longer organic certified. Courts might be more willing to have pesticide drift constitute as trespass if there is monetary harm shown. However, in this case, it seems annoyance is not enough. It will be interesting to see if more courts follow Minnesota's ruling.

Courtney Taylor said...

It's interesting you quote the Jacobs Farm case. I followed this case closely and was very excited to see the organic farm win over a conventional farm for pesticide drift. Although the court did find that nothing expressly permitted through statute can be a nuisance, the court did also find Jacobs Farm's nuisance action was not barred in this case. The court explained that the permits authorized application of the pesticides to defendant's farm; they did not authorize application of pesticides or the damage to Jacob Farm’s crop. I don't think the court addressed if either of the parties "moved to the nuisance," but I would be curious how they would have ruled on that issue.

The court there held that a pesticide applicator had a duty to defer or cease the application if there was a “reasonable possibility” that drift would damage non target crops. In this case, I'm not sure if "moving to the nuisance" would apply.

Azar said...

This was an extremely interesting post. Clearly, mere annoyance isn't going to get this guy anywhere. He definitely should have known what he was getting into. Even if he were from out of town, I seriously doubt he could argue that a reasonable person investigating the premises wouldn't have anticipated the "harm."

Jason said...

I think as we see more and more people returning or attempting to capture that "rural mystique", we will see more and more clashes as this with the old and the new.

My hometown is definitely a prime example of gentrification as the town seems to only grow as more and more retirees move in. I am familiar with several instances where new comers have made attempts to rezone areas because they didn't like the neighbor chickens or cows. Others have had to deal with how they care for their own pets as the area is very populated with livestock and wildlife.