1. A land possessor with actual knowledge or notice of foraging honey bees on the property comes under a duty of reasonable care in the application of pesticides.
2. State agency expert's interpretation of pesticide label was not entitled to judicial deference.
3. Plaintiffs lacked the requisite property interest for a private nuisance claim.
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Dissenting, Meyer, J., and Blatz, C. J.
Took no part, Anderson, G. Barry, J.
Affirmed in part, reversed in part, and remanded for further proceedings.
Heard, considered, and decided by the court en banc.
We granted the petition of appellants Jeffrey Anderson, James Whitlock and Steven Ellis (the beekeepers) to review a decision of the court of appeals affirming summary judgment in favor of respondents Department of Natural Resources (DNR) and International Paper Company (IP) on claims of negligence, negligence per se and nuisance and reversing the denial of summary judgment for the DNR on a portion of the common-law negligence claim. We affirm in part, reverse in part and remand.
Appellants Steven Ellis, Jeffrey Anderson, and James Whitlock are migratory commercial beekeepers who maintain beehives in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. The beekeepers do not own the land on which they place their hives; and in lieu of rent, the beekeepers give a "thank-you gesture" of honey or a small amount of money to the landowners. The hives are located on land near privately owned groves or "plantations" of poplar trees grown for paper production and fuel research. The DNR and IP either own or manage the groves, and the beekeepers hold no interest in them.
When cottonwood leaf beetles began invading the DNR and IP groves in 1997 and 1998, respondents retained commercial spray operators to apply Sevin XLR Plus, a carbaryl-based pesticide toxic to bees. On one occasion, July 21, 1999, the DNR arranged through a chemical supplier to have an independent contractor spray a hybrid poplar plantation close to the location of some of Ellis' hives. During this spraying, which the parties refer to as the "Swanson incident," landowner Dale Swanson estimated that pesticide was applied "perhaps a hundred feet" from 32 of Ellis' bee colonies. Minnesota Department of Agriculture laboratory analysis confirmed that at least some of Ellis' bees died from carbaryl poisoning in the apparent "overspray" incident. During other sprayings, the beekeepers allege that the DNR and IP knew bees were foraging on land that the respondents either own or manage but directed that Sevin XLR Plus be applied anyway, resulting in dead bees and infected hives.
The beekeepers commenced actions alleging, inter alia,that (1) the DNR and IP negligently created an unreasonable risk of harm to the beekeeping operations; (2) that the DNR and IP were negligent per se, in violation of the Minnesota Pesticide Control Act, which prohibits the use of pesticides in a manner that is inconsistent with label directions; and (3) that the DNR and IP created a private nuisance. Ellis subsequently dismissed his claims against IP upon discovering that his hives were not near IP's land. All parties moved for summary judgment. The district court granted summary judgment for respondents, dismissing all claims except for the claim against the DNR for damages resulting from the Swanson incident. On the appeal of the beekeepers and by notice of review by the DNR, the court of ...