Oluf Johnson, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0517

Oluf Johnson, et al.,
Appellants,

vs.

Consumers Cooperative Association of Litchfield,
Respondent.

Filed March 18, 2019
Affirmed
Hooten, Judge

Meeker County District Court
File No. 47-CV-16-464

Kristine A. Tietz, Kaitlyn J. Johnson, Chelsea A. Walcker, Robins Kaplan LLP,
Minneapolis, Minnesota (for appellants)

Troy A. Poetz, Matthew W. Moehrle, Rajkowski Hansmeier Ltd., St. Cloud, Minnesota
(for respondent)

Scott W. Carlson, Lynn A. Hayes, Lindsay Kuehn, Farmers’ Legal Action Group, St. Paul,
Minnesota; and

Jill Witkowski Heaps, (pro hac vice), Environmental and Natural Resources Law Clinic,
Vermont Law School, South Royalton, Ver mont (for amicus curiae Organic Farmers
Association, Center for Food Safety, and Organic Farmers’ Agency for Relationship
Marketing)

Considered and decided by Hooten, Presiding Judge; Reyes, Judge; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellants and organic farmers Oluf and Debra Johnson filed a civil suit alleging
that, because of pesticides that drifted onto their farmland as a result of responden t’s
spraying of an adjacent field, the organic certification of a portion of their farmland was
suspended and they had to destroy the crops grown there . The district court granted
summary judgment for respondent on the claims arising from the loss of appellants’ organic
certification. The district court based its ruling on the Minnesota Supreme Court’s decision
in Johnson v. Paynesville Farmers Union Co -op. Oil Co. , which held that organic
certification could not be suspended based on pesticide drift because the phrase
“applied to” in 7 C.F.R. § 205.202(b) unambiguously refers to the intentiona l application
of prohibited substances by an organic producer. 817 N.W.2d 693, 712 (Minn. 2012). The
district court held that therefore, as a matter of law, pesticide drift could not be the
proximate cause of the suspension of a field’s organic certifica tion. Id. We are bound by
the Minnesota Supreme Court’s decision in Johnson, and thus we affirm the district court’s
dismissal of appellant s’ claims relating to the suspension of their field’s organic
certification.
FACTS
In early June of 2014, responden t Consumers Cooperative Association (CCA) was
spraying pesticide on a conventional farm that is adjacent to appellants’ organic farm when
the wind caused some of th e pesticide to drift onto appellants’ organic alfalfa field,
contaminating their organic crops. The next day, the Minnesota Department of Agriculture

3
(MDA) inspected appellants’ farm to test for the presence of pesticides and discovered
prohibited substances. The MDA ordered appellants to destroy the contaminated crops and
issued a civil penalty to CCA for causing the drift. Following this instruction to destroy
the contaminated crops, appellants contacted their organic certifier, OCIA International,
Inc. (OCIA), and requested a determination of whether the field affected by the drift could
remain certified as organic. OCIA determined that despite the fact that prohibited
substances were found on the field, it would not suspend the field’s organic certification.
Appellants appealed this decision to the National Organic Program (NOP), a
program within the United States Department of Agriculture (USDA).1 In October of 2015,
the NOP issued its decision and overruled OCIA’s determination, suspending the org anic
certification of appellants’ field for three years.
The following June, appellants filed claims for nuisance, negligence, and
declaratory judgment in district court against respondent seeking damages for the loss of
their contaminated crops and for their losses in connection with the suspension of their
field’s organic certi fication. The district court granted partial summary judgment for
respondent and dismissed appellants’ case entirely. Upon a joint request from the parties,
the district court vacated its previous order, again dismissed the claims relating to the loss
of organic certification, certified that dismissal for appeal, and stayed the remaining claims
related to the destruction of appellants’ alfalfa crop. This appeal follows.

1 Appellants claim that they appealed this determination because they “respect the prestige
associated with organic certification and wanted to avoid the consequences of land and
crop contamination.”

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D E C I S I O N
In their complaint, appellants alleged nuisance and negligence claims, and requested
a declaratory judgment that respondent’s wrongdoing caused their field’s suspension of
organic certification. To succeed, all of these claims require appel lants to establish that
respondent was the proximate cause of their damages. Engler v. Ill. Farmers Ins. Co., 706
N.W.2d 764, 767 (Minn. 2005) (noting that proximate cause is an essential element of a
negligence claim); Highview N. Apartments v. Ramsey County, 323 N.W.2d 65, 70 (Minn.
1982) (“[T]here must be some kind of conduct causing the nuisance harm ”). The district
court dismissed these claims on the ground that under Johnson v. Paynesville Farmers
Union Coop. Oil Co. , appellants could not establish causation as a matter of law . 817
N.W.2d 693, 712 (Minn. 2012).
“We review the grant of summary judgment de novo to determine ‘whether there
are genuine issues of material fact and whether the district court erred in its application of
the law. ’” Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn. 2017)
(quoting Stringer v. Minn. Vikings Football Club, LLC , 705 N.W.2d 746, 754 (Minn.
2005)). “We view the evidence in the light most favorable to the party against whom
summary judgment was gr anted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. , 644
N.W.2d 72, 76–77 (Minn. 2002).
Appellants ask us to disregard binding precedent from the Minnesota Supreme
Court, to defer to the NOP’s determination that the pesticide drift caused their field’s
organic certification to be suspended , and to recognize a new remedy for organic farmers

5
who lose their organic certification based on pesticide drift. But we are not free to do any
of those things.
Statutory background
Organic farming in the United St ates is regulated under the Organic Foods
Production Act of 1990, 7 U.S.C. §§ 6501 –6524 (2012) (OFPA), and the related federal
regulations in the NOP, 7 C.F.R. § 205 (2018 ). One purpose of the OFPA is “to establish
national standards governing the marketing of certain agricultural products as organically
produced products.” 7 U.S.C. § 6501(1). States are free to adopt these federal standards,
or they may impose more restrictive standards to govern food products that are labeled as
organic. 7 U.S.C. § 6507(b)(1). Minnesota has adopted the OFPA and the NOP to regulate
the sale of organic food products. Minn. Stat. § 31.925 (2018).
Under federal statutes and regulations, a producer may only market crops as organic
if the producer is certified by an organic certifying agent. 7 U.S.C. § 6503(d) (stating that
the OFPA is implemented by certifying agents authorized through the Secretary of
Agriculture); 7 C.F.R. §§ 205.100, 205.102 (describing which products can be sold as
“organic”). A requirement for certification is that the producer must comply with the NOP.
7 C.F.R. § 205.400(a).
Once a producer is certified to sell products labeled as organic, the OFPA and NOP
set guidelines for processes ( see, e.g. , 7 U.S.C. § 6508), farmland ( see, e.g. , 7 C.F.R.
§ 205.202 (b)), and crops (see, e.g., 7 U.S.C. § 6511 (c)) to ensure continued compliance.
Among other requirements, and central to this case, the NOP requires that farmland where
crops are grown that are intended to be sold as organic must, “H ave had no prohibited

6
substances . . . applied to it for a period of 3 years immediately preceding harvest of the
crop.” 7 C.F.R. § 205.202(b).
2012 Johnson case
All of appellants’ arguments are fore closed by a single case —a case previously
brought against another company that had sprayed pesticides in a field next to appellants’
field. Johnson, 817 N.W.2d at 693. Johnson involved a very similar claim to the one
before us; it involved a claim regarding pesticide drift that resulted in appellants having to
destroy a portion of their crops and temporarily losing organic certification for a portion of
their farmland. Id. at 696–97. In relevant part, appellants raised claims for nuisance and
negligence based on their farmland’s organic certification being suspended for three years,
because under federal regulations when conventional pesticides drifted onto their farmland,
the pesticides were “applied to” the farmland. Id. at 706 –07 (quoting 7 C.F.R.
§ 205.202(b)). We had ruled that the passive phrase “applied to” in the regulation included
both intentional and unintentional application of pesticides to the farmland by either the
producer or third parties. Johnson v. Paynesville Fa rmers Union Co op. Oil Co. , 802
N.W.2d 383, 390 (Minn. App. 2011), aff’d in pa rt and rev’d in part , 817 N.W.2d 693
(Minn. 2012).
The Minnesota Supreme Court reversed this holding , and held that the phrase
“applied to” in the federal regulation unambiguous ly applied only to intentional behavior
by the producer of organic products. Johnson, 817 N.W.2d at 710. In effect, the Minnesota
Supreme Court held that the regulatory language “applied to” unambiguously referred to
an intentional application of pesticides by the organic producer . See id. (holding that

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“section 205.202(b) . . . unambiguously refers to prohibited substances that the producer
intentionally puts on a field from which crops are intended to be sold as organic .”). The
court also held that the federal regulation did not allow organic certifying agents any
discretion to suspend organic certification in cases of pesticide drift. Id. at 712. The court
concluded this issue by stating that , because the regulation unambiguously prevented the
organic certifying agent from suspending organic certification based on pesticide drift, as
a matter of law , pesticide drift could not be the proximate cause of an organic field’s
certification being suspended. Id. Instead, the certifying agent was the proximate cause
for erroneously suspending the certification, and the only remedy was an appeal of that
decision in federal district court. Id. (citing 7 U.S.C. § 6520(a)2 (2018)).
We begin our analysis of the facts of this case by noting that “[t]he function of the
court of appeals is limited to identifying errors and then correcting them. ” Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) ; see also Lake George Park, L. L.C. v. IBM
Mid-America Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998) (stating
that “[t]his court, as an error correcting court, is without authority to change the law ”),
review denied (Minn. June 17, 1998).
Appellants argue that the instant case is factually distinguishable from Johnson and
that we are not bound by the decision. Appellants base this argument on the fact that in
Johnson, the farmland had been stripped of its organic certification by an independent
agent, and they had not appealed to the NOP. They argue that the Johnson court based its
opinion on a “hypothetical,” and that thi s case is different because here they have the
benefit of a determination by the NOP. But appellants have failed to provide any legal

8
authority that would a llow us to ignore binding state court precedent simply because a
federal agency—that was not bound by the state court—chose not to follow the state court.
Appellants are correct that in Johnson, the Minnesota Supreme Court held that under
7 C.F.R. § 205.202(b) , organic-certified farmland could not lose its certification because
of pesticide drift, but that is exactly what happened to appellants here. While the local
independent organic certifying organization made its decision as though it were bound by
Johnson, the USDA and NOP obviously did not because they suspended appellants’ field’s
organic certification purely based on an incident of pesticide drift. But we are definitively
bound by the Minnesota Supreme Court’s holding in Johnson regarding what it found was
an unambiguous regulation which did not aut horize the suspension of certification of
organic farmland due to pesticide drift. See State v. Curtis, 921 N.W.2d 342, 346 (Minn.
2018) (holding that the Minnesota Court of Appeals is bound by Minnesota Supreme Court
precedent). Appellants have failed to present this court with any authority that would allow
us to distinguish the facts in this case from those in Johnson, simply due to the NOP’s final
ruling on the question of certification.
Appellants also argue that this court is not bound by Johnson because it was wrongly
decided. They argue tha t the Minnesota Supreme Court conflated the analysis of
requirements for land that is certified to produce organic crops as compared to the
requirements for organic food products. See Johnson , 817 N.W.2d at 712 (stating that
appellants had failed to creat e an issue for trial regarding pesticide drift on their land
because they did not present evidence that pesticide residues from drift exceeded the five-
percent tolerance level for pesticides on organic food). But again, appellants have failed
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to provide any legal authority that would allow us to disregard Minnesota Supreme Court
precedent, even if, as argued by appellants, it were wrongly decided. See Curtis , 921
N.W.2d at 346. This court is not free to ignore binding precedent of the Minnesota
Supreme Court, notwithstanding the fact that a federal agency has since interpreted the
regulation in a manner contrary to that of the court.
Appellants next argue that this case is distinguishable from Johnson because the
USDA has issued two instruction manuals since the Johnson decision that support a
conclusion that accidental pesticide drift can cause farmland to lose its organic certification
under 7 C.F.R. § 205.202(b). The first directs that:
The accidental application of prohibited substances to land also
is considered an uncorrectable noncompliance and should
result in a denial of certification or a combined Notice of
Noncompliance and Proposed Suspension. . . . Land to which
prohibited substances have been applied must be suspended
from organic operation for three years, pursuant to § 205.202
of the regulations.
See Nat’l Organic Program, U.S. Dep ’t of Agric., Instruction: Enforcement of the USDA
Organic Regulations: Penalty Matrix at 3 NOP 4002 (Jan. 20, 2015),
https://www.ams.usda.gov/sites/default/files/media/4002.pdf. The second piece of
guidance that was released in the interim is a guide for crop dusters. It reads that, “if a crop
duster accidentally applies a synthetic fungicide to your organic field, that would be
considered an application of a prohibited material, and the application for organic
certification would be denied.” Pamela Coleman, U.S. Dep’t of Agric., Guide for Organic
Crop Producers at 10 (Nov. 2012), https://www.ams.usda.gov/sites/default/files/media/G
uideForOrganicCropProducers.pdf. Appellants argue that “[b]oth of these USDA

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guidelines offer relevant legal authority as to the interpretation and application of 7 C.F.R.
§ 205.202 and should have been considered by the district court in this case.”
Had this been a case of first impression , we may have found these interpretative
sources persuasive. But again, appellants have failed to present any legal authority that
would allow us to ignore the Minnesota Supreme Court’s decision in Johnson, even when
contrary non-binding authority2 has been released in the interim. See Curtis, 921 N.W.2d
at 346.
Appellants finally argue that, because Johnson prevents them from recovering from
respondent, they have been harmed and have no legal r emedy in violation of article 1,
section 8 of the Minnesota Constitution. Article 1, section 8 of the Minnesota Constitution,
reads that, “Every person is entitled to a certain remedy in the laws for all injuries or wrongs
which he may receive to his person, property or character, and to obtain justice freely and
without purchase, completely and without denial, promptly and without delay,
conformable to the laws.” Minn. Const. art. I, § 8.
But, even assuming that appellants have damages for which they have no remedy,
it is not the function of the court of appeals to establish new causes of action, even when
such actions appear to have merit. Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d 78, 80–81
(Minn. App. 1989), review denied (Minn. Jan. 12, 1990) ; see also LaChapelle v. Mitten ,
607 N.W.2d 151, 159 (Minn. App. 2000) (stating that “[b]ecause this court is limited in its

2 Furthermore, the guidelines appellants point to are at best interpretative rules that “do not
have the force and effect of law.” See Perez v. Mortg. Bankers Ass’ n, 135 S. Ct. 1199,
1204 (2015).

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function to correcting errors it cannot create public policy ”), review denied (Minn. May
16, 2000). And, it is not the province of the court of appeals to make “a dramatic change
in the interpretation of the Minnesota Constitution ” when the Minnesota Supreme Court
has not done so. Minn. State Patrol Troopers Ass ’n ex rel. Pince v. State, Dep ’t of Pub.
Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (quoting State v. Herbst, 395 N.W.2d 399,
404 (Minn. App. 1986)), review denied (Minn. May 24, 1989); see also State v. Rodriguez,
738 N.W.2d 422, 431–32 (Minn. App. 2007), aff’d, 754 N.W.2d 672 (Minn. 2008). Even
if appellants are left without a legal remedy for the suspension of their field’s organic
certification, we are not free to establish a new remedy or cause of action to make
appellants whole. See Stubbs, 448 N.W.2d 80–81.
Because the district court, like this court, is bound by curr ent Minnesota Supreme
Court precedent interpreting federal regulations regarding suspension of a field’s organic
certification, the district court did not err in its grant of summary judgment in favor of
respondent.
Affirmed.