Goliath and David: Monsanto's Legal Battles against Farmers

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Private Eyes are Watching You

"Monsanto is big. You can’t win. We will get you. You will pay"

"As interviews and reams of court documents reveal, Monsanto relies on a shadowy army of private investigators and agents in the American heartland to strike fear into farm country. They fan out into fields and farm towns, where they secretly videotape and photograph farmers, store owners, and co-ops; infiltrate community meetings; and gather information from informants about farming activities. Farmers say that some Monsanto agents pretend to be surveyors. Others confront farmers on their land and try to pressure them to sign papers giving Monsanto access to their private records. Farmers call them the 'seed police' and use words such as 'Gestapo' and 'Mafia' to describe their tactics" Monsanto’s Harvest of Fear.

Monsanto has sued many a farmer when their GM crops have turned up on the farmer's fields even though the farmers say they never planted them (examples [1] [2]). Farmers who get into the Roundup-Ready (RR) System lose their independence, and are obliged to sign a lengthy and restrictive agreement. [3]. What's more Monsanto contracts out to private investigation firms like Pinkerton, to regularly check up on their farmers (and independent, non-GM farmers as well), taking samples unannounced from their fields to make sure they are not in violation [4] [5]. It also maintains a hotline so farmers can turn in their neighbors for suspected violations.

According to Monsanto vs. U.S. Farmers Monsanto pursues hundreds of new investigative leads a year, 600 in 2003 for example, aimed at farmers.

"The odds are clearly stacked against the farmer: Monsanto has an annual budget of $10 million dollars and a staff of 75 devoted solely to investigating and prosecuting farmers. The largest recorded judgment made thus far in favor of Monsanto as a result of a farmer lawsuit is $3,052,800.00. Total recorded judgments granted to Monsanto for lawsuits amount to $15,253,602.82. Farmers have paid a mean of $412,259.54 for cases with recorded judgments".

To be fair, there are undoubtedly a percentage of cases wherein the "violating" farmer signed the contract with full knowledge of what he was getting himself into. Equally without doubt however, there are many who either signed without reading (or understanding) the fine print, or who were perhaps given a bag of seed by a friend (not uncommon), or whose crops were pollinated by a neighbor's GM field - the HT trait going undetected (how many farmers routinely test for herbicide tolerance?) until a large portion of his crops are GM, or who perhaps gave the engineered seed a trial run one year then next growing season changed his mind only to find that the persistant stuff keeps coming back effectively putting him in violation, etc.

Monsanto v. Geertson Seed Farms

Facts of the case

On April 27, 2010, the Supreme Court of the United States heard oral arguments regarding Monsanto’s bid to overturn a federal appeals court’s decision that a nationwide ban on GM alfalfa should remain in place until a court-ordered environmental impact statement (EIS) is complete [6]. That decision found that the U.S. Department of Agriculture (USDA) did not do a thorough enough study of the impacts GM alfalfa would have on human health and the environment and ordered the agency to do another EIS review [7].

While a draft was released publicly in December 2009, “there is no anticipated date” for the final EIS, Suzanne Bond, a spokeswoman with the USDA division charged with regulating GM organism—the Animal and Plant Health Inspection Service (APHIS)—stated [8].

Monsanto’s reasoning

Although it remains undisputed that USDA violated environmental laws and that it must rigorously analyze the GM crop’s impacts before deciding whether or not to approve it for sale, Monsanto is arguing that the lower courts should have allowed the planting of GM alfalfa to go forward in the interim [9]. The ban has prevented RR alfalfa from being planted since 2007 [10].

The Geertson case hinges on Monsanto’s claim that organic farmers did not demonstrate a “likelihood of irreparable harm.” That standard was also the focus of a 2008 decision in which the Supreme Court upheld the Navy’s use of sonar for training exercises in Southern California despite potential impacts on animals (please see Winter v. Natural Resources Defense Council). Alison Peck, a law professor at West Virginia University, said it is unclear whether the justices will use the Monsanto case to further refine the test for environmental injunctions or delve more deeply into issues specifically pertaining to GM crops [11].

Case history

The Monsanto case stems from a 2006 lawsuit in the U.S. District Court for the Northern District of California. Led by the Center for Food Safety and Phillip Geertson, a producer of organic alfalfa seeds from Adrian, Oregon, the plaintiffs claimed that RR alfalfa could spread its genes to alfalfa in neighboring fields, potentially preventing the other farmers from marketing their produce as organic. This would also prohibit farmers from exporting to countries that prohibit GM crops. Organic farmers convinced the court that they faced a “likelihood of irreparable harm” from genetic contamination, securing a ban on planting of RR alfalfa (until USDA’s EIS is complete) [12].

U.S. District Judge Charles Breyer, the brother of Supreme Court Justice Stephen Breyer, ruled that the government needed to examine the GM alfalfa’s impact even though there was no reason to believe it was harmful [13]. (Because of Charles Breyer’s involvement in the case, left-leaning Supreme Court Justice Stephen Breyer will not take part in the Monsanto case).

National Environmental Policy Act (NEPA)

The law under which organic farmers were allowed to challenge USDA’s oversight of the GM alfalfa, the National Environmental Policy Act (NEPA), is what may suffer the most from the court’s eventual decision [14]. NEPA requires that whenever a federal agency undertakes a federal action that can significantly affect the quality of the environment, the agency is supposed to consider and document potential environmental effects of their actions [15]. Judge Breyer ruled in his 2007 decision that even a remote possibility of genetic contamination justified environmental review under NEPA [16].

Amicus briefs

NEPA is a key legal tool for environmental groups seeking to challenge federal agencies’ decisions; the vulnerability of NEPA in this case is why so many organizations, including the Union of Concerned Scientists, have filed amicus briefs against Monsanto.

Conversely, industry groups have described the lawsuit as a typical abuse by advocacy groups, saying the litigation is intended to obstruct and delay action even though there is little or no risk of harm to plaintiffs. Business groups, including the American Petroleum Institute, filed amicus briefs urging the court to set a high bar for plaintiffs who seek injunctions against industry while suing for environmental review. For a full list of amicus briefs filed in favor of Monsanto, please see this link.

Decision

Legal experts do not expect a blockbuster decision on the merits of regulating GM plants, but the case has drawn widespread interest because the justices could issue a ruling that would raise or lower the threshold for challenges under NEPA [17]. Justice Antonin Scalia appeared unconvinced by the respondents’ reasoning during oral arguments and stated: “This isn’t contamination of New York City’s water supply…This is not the end of the world, it really isn’t. He went on: “The most it does is affect the farmers who want to cater to the European markets” [18]. A decision is expected in June 2010.

Implications of decision

The case could have broader implications regarding Monsanto’s GM sugar beets, which have also faced opposition from environmentalists [19]. In September 2009, federal district Judge Jeffrey White of the Northern District of California, said that Monsanto’s RR sugar beets were not properly assessed and required an EIS, overturning a previous decision made by the Bush administration to deregulate the crop. White ruled that the USDA should have assessed the impact the sugar beets could have on closely related crops [20].

The plaintiffs (represented by Earthjustice and The Center for Food Safety) were looking to Judge White to block the further cultivation of RR sugar beets while the EIS is prepared; currently, Monsanto is the only supplier of sugar beets [21]. However, on March 16, 2010, Judge White denied the request seeking a temporary ban on the GM sugar beets. While Judge White denied the preliminary injunction, he indicated that permanent relief is likely forthcoming: “The parties should not assume that the Court’s decision to deny a preliminary injunction is indicative of its views on a permanent injunction pending the full environmental review that APHIS [Animal and Plant Health Inspection Service] is required to do.” The court further explained: “While the environmental review is pending, the Court is inclined to order the Intervenor-Defendants to take all efforts … to use conventional [non-GE] seed” [22].

Monsanto v. Percy Schmeiser

In the Canadian Supreme Court case of Monsanto v Percy Schmeiser, the farmer's claim that the presence of RR crops occurred accidentally was rejected. However Schmeiser says that since he never used Monsanto's Roundup in his fields there would have been no reason for him to have RR crops. Schmeiser was not required to pay Monsanto any damages due to the fact that he had not profited from the "infringement".

Nevertheless what is disturbing to many is the fact that, though technically the court attempted to limit Monsanto's patent protection to its engineered gene, in effect the court allowed Monsanto to claim patent ownership of a plant, a form of life [23], and that is because the engineered gene cannot be separated from the plant - except in a lab.

"Mr. Schmeiser saved the seed and reused it 'for production and advantage,' the majority noted. 'Whether or not patent protection for the gene and the cell extends to activities involving the plant is not relevant to the patent's validity'" "The team of dissenting judges in the latest decision, led by Justice Louise Arbour, said the ruling contradicts the Harvard mouse judgment. The majority is effectively allowing Monsanto 'to do indirectly what Canadian patent law has not allowed them to do directly: namely, to acquire patent protection over whole plants,' wrote Arbour" [24] [25].

The judgment along with previous ones upon which it was built has been interpreted by many to mean that if any RR crop is found on agricultural land wherein it was not specifically purchased even if it found its way there through entirely natural means such as wind or insect pollination, the farmer is liable to Monsanto for "theft" of its property. That at least seems to be the goal of Monsanto.

A 2000 Environment News Service article on the Canadian federal court judgment noted "Monsanto did not directly try to explain how the Roundup Ready seed got there. "Whether Mr. Schmeiser knew of the matter or not matters not at all", said Roger Hughes, a Monsanto attorney quoted by the Western Producer, a Canadian agriculture magazine.... 'It was a very frightening thing, because they said it doesn't matter how it gets into a farmer's field; it's their property," Schmeiser said, in an interview with Agweek. "If it gets in by wind or cross-pollination, that doesn't matter'" [26]. "The legal basis for Monsanto's successful claim for patent infringement was the courts' recognition that they could maintain patent protection in the patented gene even when it had passed by cross-fertilization into Schmeiser's canola crop" [27].

"Monsanto's Jordan said the company isn't concerned that Schmeiser won't have to pay. "The important aspect of this particular case was intellectual property, not any sort of monetary gain," she said. "The ruling affirms the way that we do business" [28]. Of course Monsanto had been seeking hundreds of thousands of dollars in "damages". For a different assessment of the decision see here [29].

Down on the Farm

The June 1, 2004 issue of Playboy tells how one longtime Indiana farmer, Troy Roush, once big on biotech was wrongly accused of saving seed. The legal fight cost him $390,000 in lawyers' fees. Since then he has begun to see the way the system is devastating traditional farming. "Genetically modified crops are destroying the social fabric of our rural communities" he says, "Roush probably couldn't go back to conventional crops even if he could find good conventional seed; once Monsanto's DNA is in your field it's almost impossible to get it out. And with the corporate DNA police abroad in the land, farmers can't afford to take a chance. So it looks as though there's no turning back from a future in which Monsanto and a handful of other companies own the genetic building blocks of the world's food supply. 'I'd put the genie back in the bottle in a heartbeat,' says Roush" [30].

"'I don't believe any company has the right to come into someone's home and threaten their livelihood,'" says Dawn Runyon, who along with Daivd Runyon own a 900-acre Indiana farm, "'to bring them into such physical turmoil as this company did to us'. The Runyons charge bio-tech giant Monsanto sent investigators to their home unannounced, demanded years of farming records, and later threatened to sue them for patent infringement. The Runyons say an anonymous tip led Monsanto to suspect that genetically modified soybeans were growing on their property. 'I wasn't using their products, but yet they were pounding on my door demanding information, demanding records,' Dave said. 'It was just plain harassment is what they were doing'.... Farmers [in the Roundup Ready System] must sign an iron-clad agreement not to re-plant the harvested seed, or face serious legal consequences - up to $3 million in damages.... The Runyons say they signed no agreements, and if they were contaminated with the genetically modified seed, it blew over from a neighboring farm. 'Pollination occurs, wind drift occurs. There's just no way to keep their products from landing in our fields,' David said.... In fact, in Feb. 2005 the Runyons received a letter from Monsanto, citing 'an agreement' with the Indiana Department of Agriculture giving it the right to come on their land and test for seed contamination. Only one problem: The Indiana Department of Agriculture didn't exist until two months after that letter was sent. What does that say to you?" Agricultural Giant Battles Small Farmers.

Victory and Legal Aid

California's Mendocino County as of March 2, 2004 became the first county in the nation to ban the growing of genetically altered crops and animals [31] via ballot Measure H despite a massive campaign against it from the usual suspects.

In a rare victory for the 'little guy' the Public Patent Foundation (PUBPAT), announced July 24, 2007 "that the United States Patent and Trademark Office has rejected four key Monsanto patents related to genetically modified crops... because the agricultural giant is using them to harass, intimidate, sue - and in some cases literally bankrupt - American farmers." The article goes on to say "One study of the matter found that, 'Monsanto has used heavy-handed investigations and ruthless prosecutions that have fundamentally changed the way many American farmers farm. The result has been nothing less than an assault on the foundations of farming practices and traditions that have endured for centuries in this country and millennia around the world, including one of the oldest, the right to save and replant crop seed'.... 'Hopefully, this is the beginning of the end of the harm being caused to the public by Monsanto's aggressive assertion of these patents, which threatens family farms and a diverse American food supply'" said Dan Ravicher, PUBPAT's Executive Director [32]. Monsanto plans to ask for a reconsideration.

"A landmark piece of legislation protecting California's farmers from liability was signed by Governor Schwarzenegger on Sept. 27, 2008. The bill, AB 541 (Huffman, D-Marin/Sonoma), was sponsored by a coalition of agriculture organizations and food businesses, and it is the first bill passed by the California legislature that brings much-needed regulation to genetically engineered (GE) crops. AB 541 indemnifies California farmers who have not been able to prevent the inevitable - the drift of GE pollen or seed onto their land and the subsequent contamination of non-GE crops.... The bill also establishes a mandatory crop sampling protocol to level the playing field when biotech companies investigate alleged patent or contract violations.... 'AB 541 provides much needed protection for farmers who typically lack the resources to fight lawsuits brought by biotech conglomerates,' stated Renata Brillinger, director of the Genetic Engineering Policy Project, the coalition sponsoring AB 541. 'This is a good first step towards establishing that Monsanto - not farmers - is legally responsible for the economic, environmental and health harms caused by their patented and uncontrollable products'" [33]. "The bill is one of only a handful of states that have any restrictions on GE whatsoever. Of the other three that address farmer liability protections (Indiana, North Dakota and South Dakota), California's provides the broadest protections" [34].

For legal aid to farmers a couple of groups, FLAG [35] and RAFI [36] have produced a book, Farmers' Guide to GMOs [37].

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