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Jeff Anderson first noticed something was wrong in 1998. He had been a professional beekeeper in Minnesota for many years, and had never seen anything like this. His queen bees were being replaced during the wrong time of year and, in certain locations, large numbers of bees were suddenly dropping dead.

His mysterious problems continued the following year. Steve Ellis, a fellow beekeeper who knew of Anderson's plight, called with some disturbing news: A crop duster recently had strayed from a neighbor's land, where it had been spraying insecticide on a grove of hybrid poplar trees, and now Ellis' bees were dying. He asked if any of Anderson's hives were near hybrid poplars. They were, and it didn't take long for the men to start figuring out what had happened.

The Minnesota Department of Natural Resources (DNR) and International Paper Corp. (IP) were growing hundreds of acres of hybrid poplars in the state. The DNR and IP planned to use the trees for biomass energy. But soon after DNR and IP planted the trees, cottonwood leaf beetles attacked them.

The DNR and IP responded by spraying their groves with an insecticide, Sevin XLR Plus, which is extremely toxic to bees. When the bees left their hives to forage for food, some of them strayed into the poplar groves and brought the poison back with them to their hives. The results were devastating for beekeepers throughout the state, who suffered millions of dollars in damages.

The spraying continued year after year, forcing some beekeepers to give up the business or move out of the state. Anderson and Ellis, however, fought back. They joined with a third beekeeper and sued DNR and International Paper for negligence. On March 3, the Supreme Court of Minnesota overruled two lower courts and allowed the negligence claim to go forward. Their case will affect landowners throughout the state.

Stephen F. Rufer, one of the attorneys representing the beekeepers, says the decision would protect far more than just bees; it would apply whenever a landowner uses a pesticide or other chemical without taking proper precautions to protect other people and their property. "If there's a feeling that 'it's our land and we can do as we please,' well, that feeling should go away," he says.

Placing The Blame

This case turns the usual pesticide liability suit on its head. Most pesticide-related litigations are brought either against companies that make or sell pesticides or against applicators who let pesticides drift onto neighboring lands. In this case, however, no one sued Bayer CropScience, the manufacturer of Sevin, and it was the plaintiffs' bees--not the defendants' chemicals-- that traveled onto the neighboring land.

DNR and International Paper made much of this difference, arguing they had no common law duty to protect the plaintiffs' bees because these insects were trespassing on the defendants' land. There are only two other rulings on this issue, and both seemed to support the defendants' position. Both the Wisconsin Supreme Court in 1984 and the California Court of Appeals in 1949 held that landowners have the right to reasonably use their properties as they see fit, and they have no common law duty to protect bees (or other animals) that wander onto their properties.

However, the Wisconsin ruling also made it clear that landowners can be liable if they harm a trespassing animal through "willful or wanton negligence." Minnesota courts go further, holding that once a landowner discovers the presence of trespassing animals, the landowner must use "reasonable care" to avoid injuring them.

Neither DNR nor International Paper used such care, according to the plaintiffs' complaint. Both organizations had been informed in a variety of ways that there were beehives near their poplar groves, but nevertheless decided to apply Sevin without taking any precautions to protect the bees that were likely to come onto their property. Thus, the Minnesota Supreme Court ruled, the beekeepers were entitled to a trial on their negligence claims.

"IP claimed that you own your private property and can shoot down bees as they cross your property line because they are trespassers," Rufer says. "The counter view is that bees were here long before us, they do extremely important work pollinating plants and trees, and if you are using an extremely toxic chemical, you have to be careful. Minnesota's Supreme Court adopted the latter position."

Pesky Pesticides

Various representatives of the DNR, Minnesota's Attorney General office and International Paper declined to comment on the ruling, which sent the matter back down for a trial. However, the trial is months away, and the plaintiffs claim that IP and the DNR are still spraying poplars with Sevin.

If the plaintiffs win their case, the DNR and IP may be hit with an injunction preventing them from using Sevin in their own poplar groves. They also may be forced to pay the three beekeepers several million dollars in damages. Such a loss might encourage other Minnesota beekeepers to sue for the economic harm they have suffered.

The Minnesota high court's ruling strengthens the notion that property owners don't have an absolute right to do whatever they want on their property. They need to consider how their actions will affect other people, plants, animals--and insects.

Experts expect the decision will have a limited impact outside Minnesota because government-approved labels on pesticides already protect beekeepers and other third parties. For instance, Sevin's label contains explicit warnings on how and when Sevin can be used near beehives. The defendants allegedly applied the pesticide in violation of these warnings, so they could be liable for negligence per se.

Plaintiffs could pursue this claim of negligence per se, arising from violation of the label, in addition to the claim of common law negligence, the Minnesota Supreme Court held.

Such negligence per se claims are rarely brought to trial. "Defendants usually know that if they violate the [pesticide or herbicide] label, they will have to pay, so defendants almost always settle those cases," says Theodore Feitshans, an expert in pesticide law at North Carolina State University.

Despite warning labels, pesticides remain a major problem for beekeepers around the nation, because property owners routinely apply pesticides without thinking about the hives on neighboring lands. "Trying to educate the pesticide applicators and the farmers is a constant struggle," says David Ellingson, president of the American Beekeeping Federation. The Minnesota ruling, however, might be a useful teaching tool.

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Steven Seidenberg

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