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Settling an organic dispute

Jeff Caldwell 08/09/2011 @ 10:03am Multimedia Editor for Agriculture.com and Successful Farming magazine.

Organic and conventional farms sometimes don't make the best neighbors. The practices necessary to keep one running smoothly can be a big detriment to the other. So, how can you make it work? It's not an easy situation, as one recent court case proves.

In the case Johnson, et al. v. Paynesville Farmers Union Cooperative Oil Company, filed earlier this year in Minnesota, an organic farmer accused a cooperative of pesticide drift and alleged damage in 5 crop years going back to 1998. Initially, the court ruled in favor of the plaintiff and barred the co-op from spraying within half a mile of the organic farmer's fields. Then, during an appeal, the court found the earlier ruling that stated the pesticide drift constituted trespassing was overturned, saying "Pesticide drift cannot constitute a trespass in Minnesota," says Iowa State University ag law specialist Roger McEowen.

"A unique fact in this case is that the organic farmer operates a 1,500-acre farm in the midst of conventional crops.  He is surrounded by non-organic growers.  So, who is trespassing upon whom?  What activity is the nuisance – conventional farming or organic farming?  According to the facts as recited by the court, the farmer made the decision to switch to organic farming in the 1990s," McEowen says. "Although we don’t have enough facts from the court’s opinion to tell, it is probably safe to assume that the surrounding farms were all growing conventional crops at that time.  Did they approve this “non-conforming” use?  Does that impact the outcome of the case or the analysis of the liability rule to be imposed?  Should it?  What is viewed as a normal land use activity in this case?  What is abnormal?  Should ag property be zoned to separate out the organic uses from conventional, from GMO?"

Any situation like this one is not easy, and there are many issues to consider. And, it's not just with organic farms. Similar situations can arise with genetically modified crops too, farmers say.

"Just suppose there is a lucrative non GMO contract at the local elevator and you decide to plant non-GMO corn to take advantage of it. Along comes your neighbor and right upwind from you he plants a field of BT corn. Who is going to be liable for the loss if your corn tests positive for GMOs when you haul it to the elevator?" says Agriculture.com Farm Business Talk member Pupdaddy. "Are you going to be hung out to dry because you contracted X amount of bushels and can't deliver them? Lots of questions to be answered."

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