Petition for Writ of Certiorari, Johnson v. Paynesville Farmers Union Cooperative Oil Co., No....

7/30/2019 Petition for Writ of Certiorari, Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12-678 (Nov. 29, 2012)

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No. _________

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OLUF JOHNSON AND DEBRA JOHNSON,

Petitioners,

v.

PAYNESVILLE FARMERS UNIONCOOPERATIVE OIL COMPANY,

Respondent.

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On Petition For A Writ Of CertiorariTo The Supreme Court

For The State Of Minnesota

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PETITION FOR WRIT OF CERTIORARI

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LYNN A. HAYESCounsel of Record

AMANDAN. HEYMAN

FARMERS LEGAL ACTION GROUP, INCORPORATED360 North Robert Street, Suite 500Saint Paul, Minnesota [email protected]

Counsel for Petitioners,Oluf Johnson and Debra Johnson

================================================================COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831


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i

QUESTION PRESENTED

The Organic Foods Production Act of 1990

(OFPA) and its implementing regulations (the Na-

tional Organic Program, or NOP) created uniform

standards for a national and international market inU.S. Department of Agriculture (USDA)-certified

organic agricultural products worth in excess of $31

billion. The state of Minnesota has adopted the entire-

ty of the OFPA and NOP as its organic farming law.

The federal prohibition against the use of chemicals

commonly used in conventional agricultural produc-

tion 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 andherbicides.

Whether section 6504(2) of the Organic Foods

Production Act of 1990 and its implementing regula-

tion, 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 Agriculture-

certified organic field due to the drift of prohibited

substances (e.g., chemical pesticides and herbicides)

caused by a third party.


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ii

TABLE OF CONTENTS

Page

Question Presented ............................................. i

Table of Authorities ............................................. v

Opinions Below .................................................... 1Jurisdiction .......................................................... 2

Statutory & Regulatory Provisions Involved ...... 2

Statement ............................................................ 3

A. The Statutory Framework of the OFPAand the Regulatory Framework of theNational Organic Program ........................ 5

B. Factual Background .................................. 10

C. The Proceedings Below .............................. 121. Initial Proceedings .............................. 12

2. The Minnesota Court of Appeals Re-verses the Trial Courts Interpretationof Section 205.202(b), and Holds thatCertifying Agents Have Discretion toDecertify Based on Third-Party Drift .... 12

3. The Minnesota Supreme Court Re-verses the Minnesota Court of AppealsInterpretation of Section 205.202(b) .... 13

D. The Judgment of the Minnesota SupremeCourt Is Final Under Section 1257(a) and Cox

Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .... 16

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


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iii

TABLE OF CONTENTS Continued

Page

A. The Decision of the Minnesota SupremeCourt Cannot Be Reconciled With PlainStatutory Language and Structure ........... 18

1. The Minnesota Supreme CourtsInterpretation of Section 205.202(b)Subverts the Canons of StatutoryInterpretation ...................................... 18

2. The Minnesota Supreme CourtsEmphasis on Testing Contravenesthe NOPs Process-Based Model, Mis-characterizes the Purpose of ResidueTesting, and Leads to a Faulty Nulli-fication Analysis .................................. 22

3. The Court Misidentified the Focus ofthe OFPA ............................................. 26

B. The Minnesota Supreme Court Has Erro-neously Decided an Important Issue ofFederal Administrative Law in a Mannerthat Disrupts the Orderly Administrationof a National Program and Threatens

Adverse Economic Consequences to Multi-State Actors in the over $31 Billion Or-ganic Marketplace ..................................... 28

1. The Erroneous Minnesota RulingDisrupts the Orderly Administrationof the National Organic Program ........ 29


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iv

TABLE OF CONTENTS Continued

Page

2. The Erroneous Minnesota RulingEncourages Fruitless Appeals andThreatens Adverse Economic Conse-

quences for NOP Accredited CertifyingAgents .................................................. 32

3. The Erroneous Minnesota Ruling Dis-courages Organic Production by Cre-ating Difficult Economic Conditionsfor Organic Producers and Handlers ..... 35

C. The Minnesota Supreme Court ReliedHeavily on Inapplicable Authority thatPertains to Genetic Drift Not PesticideDrift ........................................................... 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 ofMinnesota Order (November 4, 2010) ........... App. 72

District Court of Stearns County, State ofMinnesota Order (July 16, 2010)................... App. 74


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v

TABLE OF AUTHORITIES

Page

CASES

American Export Lines, Inc. v. Alvez, 446 U.S.

274 (1980) ................................................................ 16Aurora Dairy Corp. Organic Milk Mktg. &

Sales Practices Litig. v. Aurora OrganicDairy, 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, 486F. Supp. 2d 105 (D. Mass. 2007) ...............................8

Premier Bank v. Becker Dev., LLC, 785 N.W.2d753 (Minn. 2010) .....................................................19

Washington State Dept of Social & HealthServs. v. Guardianship Estate of Keffeler, 537U.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


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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 ......................................................87 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


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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) ..................................................137 C.F.R. 205.662(c) ...................................................13

7 C.F.R. 205.671 ...............................................passim

65 Fed. Reg. 80,548 (Dec. 21, 2000) (codified at7 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


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Page

OTHER AUTHORITIES

Carolyn Dimitri, et al., U.S. Dept of Agric.,

Econ. Research Serv., The Role of Contractsin the Organic Supply Chain: 2004 and 2007(2010) ....................................................................... 36

Council of Economic Advisers, White HouseRural Council, and U.S. Department of Agri-culture, Strengthening Rural Communities:Lessons from a Growing Farm Economy(2012) .........................................................................4

Eugene Gressman, et al., Supreme CourtPractice (9th ed. 2007) ............................................16

Miles McEvoy, U.S. Dept of Agric., Natl Or-ganic Program, Organic Integrity, Past, Pre-

sent, and Future (2011) ........................................... 31

USDA AMS, NOP, Celebrating 10 Years ofUSDA Organic (2012) ........................................... 8, 9

USDA AMS, NOP, List of USDA-AuthorizedOrganic Certifying Agents by State of Opera-tion (2012) ........................................................... 8, 34

USDA AMS, NOP, Memo to Accredited Certify-ing Agents Exporting USDA Organic Prod-ucts to the EU (2012) ................................................6

USDA AMS, NOP, Policy Memorandum 10-3,Attestation Statement for Agricultural Prod-ucts That Meet the Terms of the U.S.-Canadian Equivalence Arrangement (2010) ............6


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Page

USDA NASS, 2011 Certified Organic Produc-tion Survey (2012) .....................................................9

USDA, Natl Sustainable Agric. Info. Serv.,Documentation Forms for Organic Crop Pro-ducers (2011) ........................................................... 30


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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 Courts juris-

diction rests on Title 28 U.S.C. 1257(a).

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STATUTORY & REGULATORYPROVISIONS 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 pro-duced agricultural product under this chap-ter, an agricultural product shall

(1) have been produced and handled with-out the use of synthetic chemicals, except asotherwise provided in this chapter;

(2) except as otherwise provided in thischapter and excluding livestock, not be pro-duced on land to which any prohibited sub-stances, including synthetic chemicals, havebeen applied during the 3 years immediatelypreceding the harvest of the agriculturalproducts; and

(3) be produced and handled in compliancewith an organic plan agreed to by the pro-ducer and handler of such product and thecertifying agent.


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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 har-vested 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 peri-od of 3 years immediately preceding harvestof the crop; and

(c) Have distinct, defined boundaries

and buffer zones such as runoff diversions toprevent the unintended application of a pro-hibited substance to the crop or contact witha prohibited substance applied to adjoiningland 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 OrganicFoods Production Act of 1990 (OFPA) and the regu-

latory 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


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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 Su-

preme Court decision disrupts the orderly and uni-

form administration of a finely-calibrated nationaland international organic certification program

governing the more than $31 billion national market

in organic food products.1

In an erroneous decision based on a misunder-

standing 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 applica-

tion of synthetic chemical substances prohibited bythe 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--vis other states and

foreign nations. The OFPAs 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

1 See Council of Economic Advisers, White House RuralCouncil, and U.S. Department of Agriculture, StrengtheningRural Communities: Lessons from a Growing Farm Economy 4(2012) (The retail value of the organic industry grew to $31.4billion in 2011, up from $21.1 billion in 2008. The number ofoperations certified organic grew by 1,109 or more than 6% between 2009 and 2011.)


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spend billions on organic products annually. Conse-

quently, the Minnesota Supreme Court decision

disrupts the efficient administration of an important

national program and threatens adverse economic

consequences for multi-state certifying agents, organ-

ic farmers and organic handlers.

Furthermore, instead of recognizing and under-standing the purposeful complexity of the nationalorganic regime, the Minnesota court ignored properrules of statutory construction, crafted a holding thatdisrupts the NOPs process-based system, failed toproperly identify the focus of the OFPA, and mistak-enly relied on inapplicable sources of law resultingin an interpretation that cannot be reconciled withthe OFPA and NOPs plain statutory language and

framework. In so doing, the Minnesota court createda conflict between federal and Minnesota law. Theharmful effects of this conflict will reverberatethroughout national and foreign organic markets andregulatory systems unless the Court grants certiorarito resolve the conflict.

A. The Statutory Framework of the OFPA andthe Regulatory Framework of the National

Organic ProgramWhen 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


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production standards, and authorized USDA to pro-

pose regulations implementing Congresss 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 NationalOrganic 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 stan-

dards. 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 andsale of USDA certified organic products. See U.S. Dept

of Agric., Agric. Mktg. Serv., Natl 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. Dept of Agric., Agric. Mktg. Serv., Natl

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, whole-

salers 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


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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 han-

dlers and their facilities must meet exacting NOP

standards. See 7 C.F.R. 205.200, 205.400 (2012).

A majority of the organic certification require-

ments 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 collec-

tion 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 fromwhich 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 NOPs prohibition on pesticides and herbi-

cides used in chemical-laden conventional food pro-

duction 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 organicprogram.

The OFPA empowered USDA-accredited certify-

ing agents to ensure certified organic products meet

USDA organic standards. However, as one court noted

regarding NOP, [t]he regulatory scheme at issue is


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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. Dept of Agric., Natl Agric. Statistics Serv., 2011

Certified Organic Production Survey (2012). Minne-sota 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 theOFPA 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 herbi-

cides 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


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shows prohibited substances at levels that are greater

than 5 percent of the Environmental Protection

Agencys 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 pro-

cess of converting their conventional family farm to a

USDA-certified organic farm. In accordance with

NOP regulations, Oluf Johnson posted signs at the

farms 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, RespondentPaynesville Farmers Union Cooperative Oil Company

(Paynesville) of the organic transition, and specifi-

cally 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 onthe Johnsons fields and cause damage. The Paynes-

ville 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


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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 pro-

duction 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 organiccertifier, 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 detect-

ed pesticide residue. App. 56.

In 2008, MDA again cited Paynesville for illegal

spraying that contaminated the Johnsons organic

fields. Once more, in accordance with section205.202(b), the Johnsons took affected alfalfa fields

out of organic production for three years. App. 56.


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C. The Proceedings Below

1. Initial proceedings

In 2009, the Johnsons filed a civil suit against

Respondent Paynesville in Minnesota state court seek-

ing damages for the decertification of their organicfields due to Paynesvilles 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 oppor-

tunities 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 notaccept 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 Re-

verses the Trial Courts Interpretationof Section 205.202(b), and Holds thatCertifying Agents Have Discretion toDecertify 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


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that the phrase applied to in that regulation in-

cludes unintentional third-party pesticide drift. The

holding rejected Paynesvilles position that applied

to does not include unintended residual drift from

overspray, noting that Paynesvilles 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] regula-

tions and commentary [to the NOP Final Rule] fail to

expressly state what happens if drift causes a less-

than-five-percent contamination to an organic farm,

we assume that the certifying agent has the discre-

tion 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 operations

organic certification)).

3. The Minnesota Supreme Court Reversesthe Minnesota Court of Appeals Inter-pretation 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 sub-

stances by anorganic producer onto fields from which


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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

OFPAs focus on regulating the practices of the pro-

ducer 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 ofour 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.

2 When considering whether the trial court correctlydismissed the Johnsons nuisance and negligence per se claimsbased on section 205.202(b), the Minnesota Supreme Court heldthat the question was not one of damages, but one of causation.

App. 38. Therefore, the court stated, the question of tort liabilitybased on section 205.202(b) was a question of law. App. 39.


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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), anyamount of pesticide, no matter how it cameinto contact with the field, would requirethat the field be taken out of organic produc-tion for 3 years. There would accordingly beno organic crops left that would be coveredunder section 205.671 of the NOP or 7 U.S.C. 6511(c)(2). And the OFPA and NOP wouldnot need a provision allowing crops with

minimum levels of pesticide on them (i.e.,less than 5 percent) to be sold as organic be-cause such crops would necessarily havebeen harvested from fields ineligible for or-ganic production. We are not to adopt an in-terpretation that renders one section of theregulatory scheme a nullity.

App. 35. With respect to the majoritys nullification

reasoning, Justice Page concluded in dissent, The

courts reading makes no sense because no matter

who applies the prohibited pesticide and no matterhow 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 contamina-

tion. App. 51.

The Minnesota Supreme Court also opined that

the OFPA and NOP have a focus on regulating the


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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 SupremeCourt Is Final Under Section 1257(a) and CoxBroad. 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 Courts interpretation of 7

C.F.R. 205.202(b). See 28 U.S.C. 1257(a) (2006);

seeCox Broad. Corp. v. Cohn, 420 U.S. 469, 480 (1975).

This case falls squarely within the second Cox categoryregarding finality. Under Cox and its progeny, judg-

ments 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 out-

come 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, includingBrady v. Maryland, 373 U.S. 83,

85 n.1 (1963) (subsequent trial on sole issue of pun-ishment 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


27/126


28/126

18

Courts 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 contami-

nation.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

A. The Decision of the Minnesota SupremeCourt Cannot Be Reconciled With PlainStatutory Language and Structure

The Minnesota Supreme Courts ruling displayed

a fundamental lack of understanding of the finely-

calibrated OFPA and NOP regimes created to imple-

ment the nationalization of the organic label. Insteadof recognizing and understanding the intricacies of

the regime, the Minnesota court mangled proper

rules of statutory construction, ignored the process-

based 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 Courts Inter-

pretation of Section 205.202(b) Subvertsthe Canons of Statutory Interpretation

The Minnesota Supreme Courts interpretation of

the plain language of section 205.202(b) defies cus-

tomary rules of statutory interpretation. The rules

of statutory interpretation do not permit courts to

add words to a regulation whether the words were


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19

purposefully omitted or inadvertently overlooked.

App. 49 (citingPremier 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 prohib-ited substances. The plain language of thephrase Any field or farm parcel . . . must:. . . (b) Have had no prohibited substances. . . applied to it indicates that the concernis what the land in question was exposed to,not how it was exposed, why it was exposed orwho caused the exposure. Moreover, use ofthe passive voice generally indicates the fo-cus of the language is whether somethinghappened not how or why it happened.

App. 49-50 (citingDean 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 employ-

ing 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 voicelanguage of section 205.202(b) focuses on a character-

istic 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


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and portions that regulate characteristics of farm-

land. Under the heading, Crop Production, the

commentary states:

Any field or farm parcel used to produce anorganic crop must have been managed in ac-

cordance with the requirements in sections205.203 through 205.206 and have had no

prohibited substances applied to it for at least3 years prior to harvest of the crop. Suchfields and farm parcels must also have dis-tinct, defined boundaries and buffer zones toprevent contact with the land or crop by pro-hibited 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, whomust 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 re-

quired 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 commen-

tary to the NOP Final Rule also states, Certified


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21

operations are required to immediately notify the

certifying agent concerning any application, includ-

ing drift, of a prohibited substance to any field, pro-

duction 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 statesas a general requirement for organic certification:

A person seeking to receive or maintain or-ganic certification under the regulations inthis part must: * * * (f) Immediately notifythe certifying agent concerning any: (1) Ap-

plication, including drift, of a prohibitedsubstance to any field, production unit, site,facility, livestock, or product that is part ofan operation[.]

7 C.F.R. 205.400 (2012).

Responding to Justice Pages dissent, the Minne-

sota 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).


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22

App. 31-32, n.13. However, both producers and third

parties can have intentionality with respect to appli-

cation. Paynesville obviously intended to apply the

pesticides that drifted they were in fact hired to do

so.

Thus, as the Minnesota Supreme Court imper-

missibly adds words to a regulation set forth in the

passive voice and ignores statutory context in inter-

preting the phrase applied to in section 205.202(b),

the decision is erroneous and should be overturned.

2. The Minnesota Supreme Courts Em-phasis on Testing Contravenes theNOPs Process-Based Model, Mischarac-

terizes 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 third-

party drift. This testing-based model of certification

contravenes the express federal intent to create a

process-based organic certification system that usestesting as only one tool in the multi-faceted certifica-

tion 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


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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 NOPs process-based frameworks antici-

pate that section 205.202(b) will function in theabsence of testing. As discussed on page 35, infra,

some 95 percent of organic operations are not intend-

ed 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 andtrouble of testing.3As happened in the Johnsons case,

3 Note that testing creates only a seductive illusion ofcertainty in agricultural situations. Test samples from discreteportions of enormous farm fields (often the size of multiple NFLfootball 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 Courts 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 be-

yond the farm field. Section 205.671 regulates agri-

cultural 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, al-

though 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 contamina-

tion is not infrequent, as the commentary to the NOPFinal Rule notes. See, e.g., NOP Final Rule, 65 Fed.

dispersion, and testing procedures cannot always perfectlydetect low level residues. The reality of testing uncertainty is

just one of the many reasons that NOP contemplates decertifica-tion in the absence of testing.


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25

Reg. at 80,587 (discussing how to prevent exposure

to prohibited substances that would lead to subse-

quent 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 decertifica-

tion 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 prod-

ucts of the Johnsons other certified organic fields

could certainly become subject to the testing re-

quirement of section 205.671 at a later date due tonon-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 205.671s far-

reaching powers, which stretch from farm to table.4

4 Additionally, section 205.671s testing requirement ismeant to be a tool to assist in monitoring for illegal use viola-tions. See NOP Final Rule, 65 Fed. Reg. at 80,629. The NOP

drafters intended testing to help protect against bad actors whomight covertly use chemical pesticides or herbicides to moreeasily and cheaply produce fraudulent organic agriculturalproducts. This concern is part of the reason why the NOP givescertifiers the power (but does not require them) to conduct aninvestigation of the certified operation to determine the cause ofthe prohibited substance, and why intentional application of aprohibited substance by a producer gives rise to more serious



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26

Finally, the thrust of section 205.202(b) cannot beaimed at residue levels regulated by section 205.671because residues of most prohibited substancesdisperse long before three years elapse. This commonsense notion is supported by the commentary on the

NOP Final Rule, Subpart C, which states: Thestatutory prohibition on the application of a prohibit-ed substance is 3 years, and this requirement iscontained in section 205.202(b). This prohibitionrestricts the application of a prohibited substance,not its residual activity. NOP Final Rule, 65 Fed.Reg. at 80,568 (emphasis added). Moreover, there is nomethod to speed up the three-year organic transitionprocess by obtaining test results showing farmland isfree of prohibited substances.

Thus, to the extent the Minnesota SupremeCourts decision subverts the OFPA and NOPs pro-cess-based model with an outsize emphasis on residuetesting in its interpretation of section 205.202(b), thedecision contravenes Congressional intent and shouldbe overturned.

3. The Court Misidentified the Focus ofthe OFPA

The Minnesota Supreme Court incorrectly identi-fied the OFPA frameworks focus as a focus on regu-

lating the practices of producers. App. 30-33, 37. In

consequences than mere presence of prohibited substances. See7 C.F.R. 205.671 (2012) (investigation); see also NOP FinalRule, 65 Fed. Reg. at 80,629-630 (consequences).


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27

reality, the OFPAs 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 alsoAurora, 621 F.3d at 796

(stating the OFPAs first purpose would be deeply

undermined if state court systems adopt conflicting

interpretations of the same provisions of the OFPA

and NOP.).

The OFPAs second purpose also highlights itsfocus 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 OFPAs 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 afaulty 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 ofthe NOP and the OFPA as a whole andgiven


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28

the statutory schemes focus on regulating thepractices of producers, we conclude that sec-tion 205.202(b) does not cover [Paynesvilles]pesticide drift. Rather, this section governsan organic producers intentional applicationof 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 Erro-neously Decided an Important Issue ofFederal Administrative Law in a Mannerthat Disrupts the Orderly Administration

of a National Program and ThreatensAdverse Economic Consequences to Multi-State Actors in the over $31 Billion Organ-ic Marketplace

Congress enacted the OFPA to bring uniformity

and strength to a splintered organic agricultural

marketplace. The Minnesota Supreme Courts flawed

ruling strikes at the heart of this purpose by: 1)

disrupting the uniform administration of a thriving

national and international program focused on pro-

ducing 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.


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1. The Erroneous Minnesota Ruling Dis-rupts the Orderly Administration of theNational Organic Program

In creating conflict within a harmonious national

regulatory framework, the Minnesota Supreme

Courts interpretation of section 205.202(b) is anobstacle to OFPAs congressional objectives as imple-

mented 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 con-sistent standards, as not only different legalinterpretations, but also different enforce-ment strategies and priorities could further

fragment the uniform requirements. Thenatural result of these differences in inter-pretation and enforcement would be an in-crease in the consumer confusion andtroubled interstate commerce that charac-terized the period before the OFPA, whichstands in direct conflict to the OFPAs thirdpurpose of facilitat[ing] interstate commercein fresh and processed food that is organical-ly 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


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30

something different and diminished compared to

the rest of the nation and the world. Without test

results meeting the NOPs five percent residue stan-

dard, 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. Dept of Agric.,

Natl Sustainable Agric. Info. Serv., Documentation

Forms for Organic Crop Producers C24 (2011) (sam-

ple neighbor notification letter stating, If chemicaldrift 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 Courts

flawed interpretation of section 205.202(b) interferes

with one of the cornerstones of the organic certifica-

tion program the focus on producing food free of

toxic chemicals like synthetic pesticides and herbi-cides. Although a three-year decertification for third-

party 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.


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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 thefederal 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 verifica-

tion 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. Dept of

Agric., Natl 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 itsaccredited certifying agents painstaking administra-

tion of OFPAs national certification regime should

not be carelessly disrupted.


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2. The Erroneous Minnesota Ruling En-courages Fruitless Appeals and Threat-ens Adverse Economic Consequencesfor NOP Accredited Certifying Agents

The Minnesota decision expressly promotes fruit-

less appeals of decertification decisions that will drainagency, judicial, certifying agent, and producer re-

sources. In its opinion, the Minnesota Supreme Court

blamed the certifying agents 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 OCIAs decertification determination:

. . . OCIA directed [the Johnsons] to take

their soybean fields out of organic productionfor 3 years. But any such directive was in-consistent with the plain language of 7C.F.R. 205.202(b). It was also inconsistentwith the OFPA because the Johnsons pre-sented no evidence that any residue exceededthe 5 percent tolerance level in 7 C.F.R. 205.671. The certifying agents erroneousinterpretation of section 205.202(b) and theOFPA was the proximate cause of the John-sons injury, but the Johnsons cannot hold

[Paynesville] liable for the certifying agentserroneous interpretation of the law. TheJohnsons remedy for the certifying agentserror was an appeal of that determination be-cause it was inconsistent with the OFPA. 7U.S.C. 6520(a)(2).

App. 39 (emphasis added).


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From a federal agency perspective, unnecessaryand wasteful decertification appeals promoted by theMinnesota court decision will burden the small NOPcompliance and enforcement team and clog the NOPappeals pipeline. Organic farmers in Minnesota who

follow the Minnesota courts direction have no otheroption but to appeal certifying agent decertificationdecisions based on third-party pesticide drift. Barringa factual discrepancy as to whether drift occurred atall, NOP will uphold the decertification decisions inaccordance with the plain language of section205.202(b). Subsequent appeals to the USDA Nation-al Appeals Division and U.S. District Courts willalmost certainly affirm the decertification decision.Thus, after Minnesota farmers exhaust administra-tive remedies and expend scarce federal adjudicativeresources, the farmers will still be stuck in a Catch-22: unable to sell crops at the higher organic price butalso unable to recover against a law-breaking pesti-cide applicator.

Furthermore, the fruitless appeal situationdescribed above is likely to recur with frequency. Asthe commentary on the NOP Final Rule and the NOPitself recognizes, third-party pesticide drift is notuncommon even when pesticide applicators actually

comply with federal application laws. Additionally, asnews spreads outside of Minnesota during the winteragricultural conference season, producers in otherstates may feel compelled by the Minnesota decisionto appeal decertification in order to preserve potentialstate damages claims unnecessarily creating extrastress for the federal administrative appeals system.


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In addition to burdening the federal appeals

system, certifying agents cannot know how to conduct

their operations in light of this decision. It is impossi-

ble, 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 anylevel, and, on the other hand, comply with the new

and additional duty created by the Minnesota Su-

preme Court not to revoke farmland certifications

solely due to third-party pesticide drift.

Certifiers are multi-state, and often multi-

national, actors engaged in interstate commerce. An

increase in appeals of decertification based on third-

party drift will create adverse economic consequences

for the over 40 NOP-accredited certifying agentsbased in the United States. See U.S. Dept of Agric.,

Agric. Mktg. Serv., Natl Organic Program, List of

USDA-Authorized Organic Certifying Agents by State

of Operation (2012). The Minnesota ruling thus both

interferes with the certifying agents federal enforce-

ment 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 certify-

ing 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


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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 setto take effect on January 1, 2013 makes clear that

certifying agents are annually required to conduct

residue testing from only five percentof the operations

they certify. See Periodic Residue Testing Rule, 77

Fed. Reg. at 67,239. As the commentary to the resi-

due 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 Dis-courages Organic Production by Creat-ing Difficult Economic Conditions forOrganic Producers and Handlers

The Minnesota Supreme Courts erroneous inter-

pretation of section 205.202(b) has created economic


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36

uncertainty for organic producers especially small-

scale family farmers who no longer have a remedy

when their carefully-tended organic crops are dam-

aged 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 byNOP 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 Minne-

sota 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 organicproduction at high levels of organic integrity in order

to compete in the over $31 billion organic market-

place. 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 pesti-

cides or herbicides. Additionally, any decrease in the

number of farmers interested in organic production

due to concerns about increased economic uncertaintyrelated to pesticide drift is bad for organic handlers,

who have faced unprecedented demand for organic

products. See Carolyn Dimitri, et al., U.S. Dept of

Agric., Econ. Research Serv., The Role of Contracts in

the Organic Supply Chain: 2004 and 20071 (2010).


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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 andmulti-national businesses, organic farmers, and con-

sumers. 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 ReliedHeavily on Inapplicable Authority thatPertains to Genetic Drift Not PesticideDrift

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 courts ruling that a third

partys pesticide drift cannot cause a field to lose

organic certification is directly supported by citation

to language from the NOP Final Rule under thecommentary 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).


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The excerpt from the NOP Final Rule, erroneously

relied upon by the Minnesota Supreme Court, states:

When we are considering drift issues, it isparticularly important to remember that or-ganic standards are process based. Certify-

ing agents attest to the ability of organicoperations to follow a set of productionstandards and practices that meet the re-quirements of the Act and the regulations.This regulation prohibits the use ofexcludedmethods in organic operations. The presenceof a detectable residue of a product ofexclud-

ed methods alone does not necessarily consti-tute a violation of this regulation. As long asan organic operation has not used excludedmethods and takes reasonable steps to avoid

contact with the products ofexcluded meth-ods as detailed in their approved organic sys-tem plan, the unintentional presence of theproducts ofexcluded methods should not af-fect the status of an organic product or oper-ation.

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

5 Further highlighting the Minnesota Supreme Courts mis-take, the excerpted segment about excluded methods appearswithin the larger portion of commentary discussing Subpart B ofthe 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 NOPFinal 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



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The Minnesota Supreme Court apparently con-

flated the terms prohibited substances and excluded

methods, and believed the two terms to be inter-

changeable. In fact, the terms are separately defined

and regulated within the NOP.6See 7 C.F.R. 205.2

(2012) (definitions). For example, the final sentencein the excerpt above stating the unintentional pres-

ence 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 beconsistent 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 inthe commentary to the NOP Final Rule. See 7 C.F.R. Part 205Subpart 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 onlywith respect to prohibited substances, the terms genetic driftor GMO drift are commonly used within in the organic com-

munity to refer to the drift of the products of excluded methods(generally meaning pollen from genetically modified plants). See7 C.F.R. 205.2 (2012) (defining drift as the physical movementof prohibited substances from the intended target site onto anorganic operation or portion thereof); see,e.g., NOP Final Rule,65 Fed. Reg. at 80,556 (using the term genetic drift in clarify-ing the NOP regulations with respect to drift of pollen fromgenetically modified crops).


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40

have retained the term, excluded methods, to re-

inforce that process-based approach.).

As the Minnesota Supreme Court holding mistak-

enly relies upon inapplicable language solely pertain-

ing to excluded methods to support its interpretation

of section 205.202(b)s prohibition of prohibited sub-

stances on land, the Minnesota decision should be

reversed.

------------------------------------------------------------------

CONCLUSION

For the reasons described above, the MinnesotaSupreme Courts erroneous interpretation of section205.202(b) interferes with the cornerstone of a uniform

national certification regime and cannot be reconciledwith the plain statutory language and framework ofthe OFPA and NOP. This Court should grant certiora-ri and summarily reverse the decision.

Respectfully submitted,

LYNN A. HAYESCounsel of Record

AMANDAN. HEYMAN

FARMERS LEGAL ACTION GROUP, INCORPORATED

360 North Robert Street, Suite 500Saint Paul, Minnesota [email protected]

Counsel for Petitioners,Oluf Johnson and Debra Johnson

November 2012


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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 pro-

ducers 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), thecourt erred when it dismissed those claims.

3. Because respondents proposed amended nui-

sance 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 respon-

dents 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 contami-

nation of organic farm fields in central Minnesota.

Appellant Paynesville Farmers Union Cooperative Oil


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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 Coop-

erative was spraying pesticide onto conventionallyfarmed 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 destroysome 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 re-

instatement 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.


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App. 4

Before discussing the factual background of this

case, it is helpful to briefly summarize the organic

farming regulations at issue. American organic farm-

ing 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 NationalOrganic 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 agri-

cultural 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 andthe 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 cer-

tifying agent. 7 U.S.C. 6503(d) (stating that the

OFPA is implemented by certifying agents autho-

rized 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 cer-

tification, a producer must comply with the NOP.

7 C.F.R. 205.400. Among numerous other require-

ments, the NOP provides that land from which crops

are intended to be sold as organic must [h]ave had


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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 prod-

ucts as organic, the OFPA and NOP provide guidelines

for certified organic farming operations to ensure con-

tinued 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 require-

ments. 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 atlevels 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 Agencys 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.

1The parties agree that the pesticides the Cooperative

sprayed are prohibited substances under the NOP.


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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 blowingtoward the Johnsons fields at 9 to 21 miles per hour,

the Cooperative sprayed Status (diflufenzopyr and

dicamba) and Roundup Original (glyphosate) onto a

conventional farmers field immediately adjacent to

one of the Johnsons transitional soybean fields. The

MDA informed the Johnsons that there was no toler-

ance for diflufenzopyr in soybeans (organic, transi-

tional, or conventional) and that, pending chemical

testing, the MDA would determine if there [would]

be any harvest prohibitions on the Johnsons soy-beans. After receiving the results of the chemical test-

ing, 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 John-sons plow down a small portion of the soybeans

2A 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.


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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 of36-month transition. Based on the OCIAs 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 farmers

field. The MDA investigator did not observe any plant

injury, but chemical testing revealed a minimal

amount of glyphosate in the Johnsons transitional


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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 pres-

ence, at minimal levels, of chloropyrifos, the active

ingredient in another pesticide, Lorsban Advanced.The MDA conc

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