> Am I, as a beekeeper, now expected 
> to find out who owns all of the land within flight 
> distance of my 14 different apiaries? 

>> Yes.. your allowing your bees to trespass on those 
>> lands....  and by doing so,  you accept responsibility 
>> for them and their actions.  Standard case law in any state.

Actually, no.

I've been reading up on this, as the NY State meetings about "pollinator protection" prompted me to wonder if any state could actually get away with what seems to be the agenda in NY, putting the onus on the beekeeper to move his hives from every use of pesticides, or accept whatever losses result.  It does not seem that they can legally do this, but it may take a court order to "convince" them.

The states contradict each other on what is "standard", and I can't find any cases where a claim of "trespassing bees" allowed a pesticide user to escape liability for killing bees with pesticides.  

This may be long, but some may find it worth the time.  I think it is appropriate to understand this sort of material if one is participating in any of the state-level "pollinator protection" hearings.

The TL;DR is this - Landowners have a "duty of care" to not harm surrounding landowners, landowner/beekeepers, or tenant beekeepers. Landowners also have a "duty of care", even to "trespassing" animals. At the very minimum, they may not injure them willfully or carelessly, but must use reasonable care to avoid injuring them.  To not do so would be the tort of "common-law negligence".  

In addition, everyone is under a federal statutory requirement to strictly follow the bee caution statements on the pesticide labels, per FIFRA.  Not following the label to the letter is "negligence per se", where the statutory violation in itself is considered clear negligence, implying that damages are due.  In most places, the clear wording of FIFRA supplants the traditional common-law tort liability completely, as the statute creates a more clearly-worded federal-level "duty of care" to follow, and landowners need to be able to rely on one set of rules, and not be expected to comply with two, possibly contradictory sets of rules, and federal law always supersedes any/all state law it overlaps.

Below is the longer-winded version. 
Disclaimer, I am certainly not an attorney, but I had enough of them shoving papers at me to approve or sign when I worked for AT&T to have more than a passing familiarity with the concepts presented here, as they are very basic.  Anyone having taken any "business law" survey course will find all this familiar.  

TRESPASSING BEES - DOES WEATHER "TRESPASS", TOO?

The concept of "bee trespass" ignores basic concepts of tort law, as bees cannot be considered "trespassers". Trespassing livestock must have committed a “wrongful entry” in the landowner's eyes, which implies that the landowner must have done something beforehand to exclude them, such as installing fences to keep out cows, and much higher fences that train deer how to jump ever higher.

Bees are unstoppable forces of nature, much like wind, rain, and sun.  There is no known way to reliably keep bees from foraging on anyone's property, so a pesticide bee kill is more properly compared to polluting a stream with pesticide run-off, as it damages others through negligent acts that harm others downstream.  Just as the rain cannot be stopped from falling on the property and carrying the runoff into the stream where it harms others, the bees cannot be stopped from entering the property and carrying the toxic pesticide back to their hives, where it harms the bees, and hence their keepers.

The "trespass" concept might be trotted out in situations where it could be proven that the bees have some specific negative impact, such as the case of Paramount Orchards in CA, who planted their murcot ("clementine" seedless orange) groves against the suggestions of their hired experts, with fertilizing varieties too close to the "seedless" varieties.  In this case, the bees would, by pollinating, "damage" the crop, creating seeds, but even then, the basic error of not following "best practices in planting" was the self-inflicted wound here, not the presence of the pollinators.  

Regardless, a landowner cannot intentionally or wantonly harm bees, even if they might be misclassified as "trespassing".

PESTICIDE DRIFT AND "DUTY OF CARE"

The actual "standard case law" is based upon tort law principals, as follows:

"Landowners owe a duty of care to use their property so as not to injure that of others." 

It is universal for landowners to be held responsible for damage caused to property, plants, or animals when pesticides drift
onto others’ land during or after their application.  

In Miles v. A. Arena & Co, a California case, the plaintiff sued over 56 hives allegedly killed by drifting pesticide from the defendant’s land.  The plaintiff’s bees were located on rented property near the defendant’s farm.  The Miles court relied upon the rule that no landowner has the right to use his property in such a way that damage to a neighbor is foreseeable. (Miles v. A. Arena & Co., 23 Cal. App. 2d 680 [73 P.2d 1260])

The court went on to hold that because of the evidence presented concerning the conditions at the time of the pesticide spraying (wind), the defendants should have foreseen the damage to plaintiff’s bees and were liable for damages.

Other significant cases coming to the same conclusion (paste the citations into a search engine to read the court rulings) include:
Lundberg v. Bolon, 67 Ariz. 259 [194 P.2d 454]; 
S. A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503 [27 P.2d 678]; 
Hammond Ranch Corp. v. Dodson, 199 Ark. 846 [136 S.W.2d 484].)

Further, in "S. A. Gerrard" above, the court ruled "The law will not allow one who has a piece of work to be done that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work."  This made clear an exception to the general rule that a person is not liable for the acts of an independent contractor.   The ruling of the (appeals) court includes a remarkably insightful discussion of how to award damages both for hives killed outright, and for hives weakened to the point of forcing colonies to be combined.  In short, hives are units, and they have a value, and one should count hives before and after, one does not try to count bees killed, or expect the beekeeper to do more to mitigate his damages than to salvage what he can from combining the surviving bees into sustainable hives.

FORAGING BEES

Even in cases where the pesticide does not drift, use of a pesticide in a manner inconsistent with label "bee caution" statements, constitute violations of FIFRA and state laws and creates a cause of action for "negligence per se", where the fact of the violation of the law or regulation itself is inherently a negligent act.  In essence, the label warnings and FIFRA define the "duty of care" the landowner owes to all bees, both those who might be on his property, and those who are nearby.

There have only been 3 cases in the US that I can find where the subject was foraging bees, rather than pesticide drift:

1) Lenk v. Spezia, 95 Cal. App. 2d 296 - 1949 was California case where the beekeeper had been informed of the crop dusting of tomatoes. "[the crop dusters] personally notified plaintiff of their intention to do so, and offered to use their trucks to assist him in removing his hives to a safe place, but that he refused to take any means of protecting his bees, saying, with respect to a particular crop, that "If we dusted that  job he would sue us."

The beekeeper sued, claiming that the pesticide had drifted to his apiary, but the court sided with the defendants, who claimed that they had first dusted flour alone, to check that the wind was blowing away from the apiary.  The Court did not believe the beekeeper, and ruled that the bees had foraged on the sprayed crops, bringing the pesticide back to the hives.

The court ruled that the beekeeper should have either moved his bees, or screened them in to keep them from flying that day:
"If the owner of animals or bees has full knowledge of anticipated or actual performance of acts which will result in injury, and he fails and refuses to exercise reasonable precaution to protect them, he is guilty of contributory negligence which will preclude him from recovering damages."

In consideration of all of the above, the court used the phrase "trespassing bees" to explain why the beekeeper had no claim, but they could have just said that the reason was that the beekeeper acted like a stubborn jerk:

"If plaintiff's bees procured the poisonous compound from which they died while they were trespassing on the fields of other owners of land, it appears that the plaintiff could not recover damages unless the poison was distributed wantonly, maliciously, or with the deliberate intent to injure or destroy the bees. There is no evidence in this case of such wanton or malicious conduct. Under such circumstances there was no duty on the defendants or the owners of the land to protect plaintiff's trespassing bees from the danger of said poisonous compound."

But this was 1949, long before the EPA and FIFRA were established.  I can't find another case that uses the term "trespassing" in regard to bees, but there could be local court rulings that are not indexed online.

2) In Bennett v. Larsen Co., 348 N.W.2d 540 (Wis. 1984) the Wisconsin Supreme Court refused to call honey bees "trespassers". Trespass is defined as an uninvited entry. They declined to lump bees in with common trespassers because it would be impossible to keep bees off one’s property if they wish to forage there, and a trespasser is someone who ignores a sign, or climbs a fence, or otherwise defies an attempt to put them on notice to stay out.  Bees would never be "on notice to stay out" any more than a rainstorm or the wind would.

But the court then turned around and ruled that, lacking willful or wanton conduct, landowners who follow pesticide label directions have no duty to foraging bees on their property, because they have the right to use their land as they see fit. The court also expressly noted that the lack of a common law duty to honey bees did not preclude duties imposed by statutes like FIFRA, which create "negligence per se" liability.  Then, the court held that a Wisconsin statute established a standard of care via pesticide label instructions, and the failure to follow the label instructions did constitute negligence per se.

3) In Anderson v. State Dep’t of Natural Res., 674 N.W.2d, the Supreme Court of Minnesota found that beekeepers had a right to sue a private property owner and the state itself, who sprayed carbaryl on their land, knowing honeybees were foraging there and would be killed by the poison. The Supreme Court sent the case back to the district court at which point the pesticide users offered to settle and the state’s Department of Natural Resources decided to stop using the pesticide. 

This ruling bent over backwards to protect bees and beekeepers, as the court allowed both tort negligence and negligence per se claims at the same time in the same case. Clearly, one will not collect double damages from a single act, but the MN Supreme Court left it to the district court to look at the evidence, and decide which would be more appropriate.

ULTRA-HAZARDOUS ACTIVITY

Some jurisdictions have found that the application of pesticides and herbicides is inherently an "ultra-hazardous activity". In Loe v. Lenhardt 227 Or. 242 (1961), the Oregon Supreme Court stated that “[t]he authorities are practically uniform in holding that crop dusting is an activity sufficiently freighted with danger to impose liability upon the landowner having the work done if negligence is proven,” even if there is no fault, or if the fault lies entirely with an independent contractor.  A crop-duster airplane sprayed defoliant, and the seed crop in an adjacent field was killed off by the defoliant.  No bees involved here, but the ruling is of interest, in that it keeps the landowner liable for bee kills.  The only other "ultra-hazardous" activity I could find was blasting with explosives, so this is pretty powerful stuff for the beekeeper to leverage.

THE THIRD RESTATEMENT OF TORTS (2010)

Since tort law evolves as courts rule on various cases, committees try to document the lay of the land every 30 years or so.  In the most recent "restatement", the concept of "foreseeability" of harm or probability of injury has been made far less important by the introduction of a "scope of liability", reducing most tort liability decisions to:

Will the judge (1) find a breach of the duty of care, and (2) find that the plaintiffs’ harm was within the range of harms
risked by the defendants’ conduct?

Note that the damage done does not have to be "a foreseeable" outcome of the act claimed to be negligent.  The damage merely has to been one of perhaps many possible outcomes of the act at issue.  "Possible" is a much easier requirement to meet than "foreseeable".

THE SUPREMACY CLAUSE AND FEDERAL PREEMPTION

Prior to Anderson v. State Dep’t of Natural Resources, I would have said that, in modern times, one can only sue for the FIFRA violation, or one's local state law that implements/enforces FIFRA at the state level.  But in Anderson, the state supreme court allowed Anderson to sue for both "negligence" (old-skool tort) and "negligence per se" (FIFRA violation) simultaneously, and to see which could be better-proven.  Of course there would be no way that any court would award damages twice over for the same negligent act.

Note that MN has its own state constitution, so they do tend to be an outlier in a lot of law.  A state with its own constitution can even "choose to adopt" or "decline to adopt" even a US Supreme Court ruling, if they have different wording in their state constitution from the US constitution in the appropriate clauses for the case at issue.

WHO WRITES THE PESTICIDE LABEL CAUTIONS?

The "negligence per se" rule for FIFRA label violations might seem to put pesticide manufacturers in the position of defining the "standard of care", and it might seem unfair for a private company to set liability standards for everyone else.  That’s not how it works - the EPA controls the bee cautionary language, and it controls the entire label, down to even the colors.  

Just to illustrate how much control they have, here in NY, a pallet of formic acid pads from MiteAway could not be sold, as the MiteAway folks printed the labels in black-and-white, when the EPA required that the word "Warning" be printed in red.  The state-level folks were so afraid of the EPA, they sat on the entire pallet, and would not allow any sales until reprinted labels were shipped.

That's enough.  Tray tables have to go up soon. I have to change planes.

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