Background
Shanon Gjovig and Tierany Johnson sued pesticide applicator New Century Ag for alleged crop damage caused by a pesticide application. The district court for Divide County, Northwest Judicial District, granted summary judgment in favor of New Century Ag and denied the plaintiffs’ request for further discovery. Gjovig and Johnson appealed, contending the trial court misapplied the pre-suit notice statute governing pesticide-damage claims.
North Dakota law, N.D.C.C. § 4.1-33-18(1)(a), requires that before any person may file a civil action for property damage allegedly caused by a pesticide application, the person must notify the applicator by certified mail within the earlier of twenty-eight days from when they first knew or should have known of the damage, or before twenty percent of the affected crop or field is harvested or destroyed. The plaintiffs conceded they had not sent certified-mail notice but argued that actual notice — New Century Ag had visited and inspected the damaged fields — rendered strict compliance with the written-notice requirement unnecessary and, under the circumstances, absurdly harsh.
The Court’s Holding
The North Dakota Supreme Court summarily affirmed the district court under N.D.R.App.P. 35.1(a)(4), (6), and (7). The court held that N.D.C.C. § 4.1-33-18(1)(a) is unambiguous and that its prior decision in Laufer v. Doe, 2020 ND 159, 946 N.W.2d 707, is controlling. In Laufer, the court determined that the word “shall” in the statute creates a mandatory duty to provide notification by certified mail, requiring strict compliance.
The court rejected the plaintiffs’ argument that the applicator’s actual knowledge of the damage — gained through its own field inspection — could substitute for the statutorily required certified-mail notice. Because summary judgment resolved all material facts and the certified-mail notice requirement was not met, the court also found no abuse of discretion in the district court’s denial of further discovery.
Key Takeaways
- N.D.C.C. § 4.1-33-18(1)(a) requires certified-mail notice to a pesticide applicator before any civil suit for crop or property damage may be filed — strict compliance is mandatory, not merely directory.
- An applicator’s actual, informal knowledge of the alleged damage does not excuse a claimant’s failure to provide the statutorily required certified-mail notice.
- The twenty-eight-day window runs from when the claimant first knew or should have known of the damage, or before twenty percent of the affected crop or field is harvested or destroyed, whichever is earlier — missing that deadline is fatal to the claim.
Why It Matters
This decision reinforces a strict compliance standard for North Dakota’s pesticide-damage pre-suit notice requirement and closes the door on “actual notice” arguments as a workaround. Farmers and landowners who believe their crops have been harmed by a neighboring pesticide application must act quickly and follow the precise statutory procedure — certified mail within twenty-eight days — or risk losing their right to sue entirely, regardless of whether the applicator is already aware of the problem.
For agricultural attorneys and applicators operating in North Dakota, the ruling underscores that courts will not rewrite an unambiguous statute to avoid a harsh result. It also signals that summary judgment will be upheld where the notice defect is undisputed, and that discovery will not be permitted to proceed when that threshold issue is dispositive.