(dissenting).
I respectfully dissent.
I.
The court holds that Minnesota does not recognize claims for trespass by particulate matter. I disagree with the breadth of the court’s holding. The term “particulate matter” encompasses a variety of substances, but the court’s one-size-fits-all holding that particulate matter can never cause a trespass fails to take into account the differences between these various substances. The Environmental Protection Agency defines “particulate matter” as “a complex mixture of extremely small particles and liquid droplets” “made up of a number of components, including acids (such as nitrates and sulfates), organic chemicals, metals, and soil or dust particles.” United States Envtl. Prot. Agency, http://www.epa.gov/pm/ (last updated June 28, 2012). Some particles are sufficiently large or dark to be observable, “such as *715dust, dirt, soot, or smoke.” United States Envtl. Prot. Agency, http://www.epa.gov/ pm/basic.html (last updated June 15, 2012). In terms of size, the largest “inhalable coarse particles” are 10 micrometers in diameter; that is one-seventh the diameter of a strand of human hair. Id. It seems to me that differences in size, quantity, and harmfulness of varying types of particulate matter will have an effect on whether the invasion by the substance causes a trespass. For example, if someone causes harmful dust to enter a person’s land and that dust settles on the person’s land and interferes with the owner’s possession of the land, it would seem that a trespass has occurred. However, if that person were to cause car exhaust, which presumably dissipates quickly in the air, to enter a person’s land, it would seem that a trespass would not occur.
The distinction between trespass and nuisance should not be based on whether the object invading the land is tangible or intangible. Whereas that distinction may have been logical at times when science was not as precise as it is now, that distinction is not sound today. See, e.g., Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, 793 (1959) (suggesting that one explanation for the historical adherence to a distinction between tangible and intangible invasions of land was that “science had not yet peered into the molecular and atomic world of small particles”). We have previously held that invasion by water constitutes a trespass and invasion by a bullet constitutes a trespass. Greenwood v. Evergreen Mines Co., 220 Minn. 296, 311-12, 19 N.W.2d 726, 734-35 (1945) (water); Whittaker v. Stangvick, 100 Minn. 386, 391, 111 N.W. 295, 297 (1907) (bullets and fallen game). It is a small extension, if any, of those holdings to conclude that invasion by pesticide can constitute a trespass, especially because pesticides are designed to affect the land, unlike an invasion by a bullet, which creates no such risk.
The proper distinction between trespass and nuisance should be the nature of the property interest affected. See Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979) (“Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is ‘tangible’ or ‘intangible.’ Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies.”); see also J.D. Lee & Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation § 38:1 (2d ed.2006) (“The distinction between nuisance and trespass is in the difference in the interest interfered with: in a nuisance action it is the use and enjoyment of land, while the interest in a trespass action is the exclusive possession of land.”). As other courts have suggested, the same conduct may constitute both trespass and nuisance. See Borland, 369 So.2d at 527 (noting, “the same conduct on the part of a defendant may, and often does, result in the actionable invasion of’ exclusive possession of the property and use and enjoyment). Thus, while the court concludes that invasion by an intangible object never interferes with a property owner’s posses-sory rights, I conclude that in some circumstances it may, particularly when that intangible object is actually a substance that settles on the land and damages it. See id. at 530 (“[I]f, as a result of the defendant’s operation, the polluting substance is deposited upon the plaintiffs property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass....”); *716cf. Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 709 P.2d 782, 791 (1985) (“When airborne particles are transitory or quickly dissipate, they do not interfere with a property owner’s possessory rights and, therefore, are properly denominated as nuisances.”).
Rather than adopt a categorical conclusion that particulate matter can never cause a trespass, I conclude, as discussed above, that it may constitute a trespass under some circumstances. Here, on the record presented at this stage in the litigation, it is not clear to me whether the pesticides in this case constituted a trespass. Therefore, I would allow the suit to go forward and permit the record to be developed to resolve that question.
II.
I also dissent from the court’s interpretation of 7 C.F.R. § 205.202(b) (2012). That regulation reads: “Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic,’ must: ... (b) Have had no prohibited substances, as listed in § 205.105, applied to it for a period of 3 years immediately preceding harvest of the crop[.]” The court concludes that this regulation does not apply to the alleged conduct here because a pesticide is not “applied to” a farm if its presence is caused by drift, as opposed to being directly applied by the organic farmer. Our rules of statutory interpretation (which we apply to regulations) do not permit us to add words to a regulation whether the words were “purposefully omitted or inadvertently overlooked.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 760 (Minn.2010). Rather, when we interpret a rule, we consult “the language itself, the specific context in which that language is used, and the broader context of the [rule] as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). In this case, the court concludes that the OFPA’s focus on producers and handlers of organic products informs its interpretation that “applied to” in section 205.202(b) refers only to application of pesticides by the organic farmer. This conclusion flies in the face of our rules of construction as well as common sense.
First, the language of section 205.202(b) is silent with respect to who applied the prohibited substances. The plain language of the phrase — “Any field or farm parcel ... must: ... (b) Have had no prohibited substances ... applied to it” — indicates that the concern is what the land in question was exposed to, not how it was exposed, why it was exposed, or who caused the exposure. Moreover, use of the passive voice generally indicates the focus of the language is “whether something happened — not how or why it happened.” Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009).
Further, numerous regulations in Title 7, Part 205, explicitly govern the behavior of producers and handlers. See 7 C.F.R. § 205.200 (2012) (“The producer or handler ... must comply with the applicable provisions-”); 7 C.F.R. § 205.201(a) (2012) (“The producer or handler ... must develop an organic production or handling system plan_”); 7 C.F.R. § 205.203(a) (2012) (“The producer must select and implement tillage and cultivation practices....”); 7 C.F.R. § 205.203(b) (2012) (“The producer must manage crop nutrients and soil fertility....”); 7 C.F.R. § 205.203(c) (2012) (“The producer must manage plant and animal materials....”). The distinct language in section 205.202(b) is striking in comparison to these provisions. In contrast to the provisions that specifically regulate the behavior of producers, the language in section 205.202(b) *717focuses on a characteristic of the field and does not refer to the producer, handler, or farmer. While section 205.202(a) implicitly references producers and handlers, by referring to provisions that specifically prescribe their conduct, section 205.202(b) does not do so in any way.
Evidently, under the court’s reading of the regulations, if a third party intentionally applies a prohibited pesticide to an organic farm field in a quantity sufficient to leave a residue that violates the regulation, 7 U.S.C. § 6511(c)(2)(A) (2006) would not prohibit the product’s sale as an organic product because the producer had not applied the prohibited pesticide. See 7 U.S.C. § 6511(c)(2)(A) (prohibiting the sale of a product as organic if, upon inspection, it is determined that pesticide or nonor-ganic residue is present as a “result of intentional application of a prohibited substance”). The court’s reading makes no sense because no matter who applies the prohibited pesticide and no matter how the pesticide is applied, whether by drift or otherwise, the end product will be no less contaminated and no less in violation of regulations limiting such contamination.
Therefore, I dissent.