(Beyond Pesticides, July 13, 2012) Seventy-five family farmers, seed businesses, and agricultural organizations representing over 300,000 individuals and 4,500 farms filed a brief on July 5, 2012 with the United States Court of Appeals for the Federal Circuit in Washington asking the appellate court to reverse a lower court’s decision from February dismissing their protective legal action against agricultural giant Monsanto’s patents on genetically engineered seed.
The plaintiffs brought the preemptive case against Monsanto in March 2011 in the Southern District of New York and specifically seek to defend themselves from nearly two dozen of Monsanto’s most aggressively asserted patents on GMO seed. They were forced to act preemptively to protect themselves from Monsanto’s abusive lawsuits, fearing that if GMO seed contaminates their property despite their efforts to prevent such contamination, Monsanto will sue them for patent infringement. Beyond Pesticides signed on as a plaintiff in the suit in June 2011.
‚ÄúMonsanto is known for bullying farmers by making baseless accusations of patent infringement,‚ÄĚ said attorney Dan Ravicher of the not-for-profit legal services organization Public Patent Foundation (PUBPAT), which represents the plaintiffs in the suit against Monsanto known as Organic Seed Growers and Trade Association et al. v Monsanto. ‚ÄúThey’ve sued and harassed other farmers who wanted nothing to do with their genetically modified seed and now that organic and conventional farmers are fighting back, they claim they would never do such a thing without backing up their words with an enforceable promise.‚ÄĚ
In an attempt to sidestep the challenge, Monsanto moved to have the case dismissed, saying that the plaintiffs’ concerns are unrealistic. In February 2012, after hearing plaintiff‚Äôs arguments, the district court took Monsanto’s side and dismissed the case, ridiculing the farmers in the process. Despite the fact that the plaintiffs are at risk for being contaminated by genetically modified seed and then sued for patent infringement by Monsanto, Judge Naomi Buchwald of the Southern District of New York dismissed the case because she did not find a case worthy of adjudication, saying, ‚ÄúIt is clear that these circumstances do not amount to a substantial controversy and that there has been no injury traceable to defendants.‚ÄĚ
Plaintiffs feel otherwise. Two of the plaintiffs submitted sworn declarations in the case highlighting the prevalence of contamination by genetically modified seed. Both Chuck Noble, an alfalfa farmer from South Dakota, and Fedco Seeds, a seed distributor in Maine, have repeatedly discovered GMO contamination in purportedly conventional seed they sought to purchase. To protect themselves from being contaminated, they have had to adopt expensive and time-consuming genetic testing procedures.
“We have a right to farm the way we choose,‚ÄĚ said Maine organic seed farmer Jim Gerritsen, President of lead plaintiff Organic Seed Growers and Trade Association (OSGATA). ‚ÄúYet Monsanto is unwilling to control their GMO pollution and they refuse to sign a binding covenant not-to-sue our family farmers for patent infringement should their seed contaminate our crops. Monsanto‚Äôs publicized ‚ÄėCommitment‚Äô promising that they would not sue farmers was described by Monsanto‚Äôs own lawyers as being ‚Äėvague.‚Äô The law says we deserve protection under the Declaratory Judgment Act. We will continue to pursue our right to farm, and the right of our customers to have access to good clean food and seed.‚ÄĚ
Other plaintiffs have simply stopped growing certain types of crops due to the threat of contamination. Bryce Stephens, a certified organic farmer from northwest Kansas, had to give up on trying to grow organic corn and soy once his neighbors started using Monsanto’s genetically modified seed because it could easily spread onto his property and contaminate his organic crops, which would put him at risk of being sued for patent infringement by Monsanto.
A recent court decision in Colorado may be of significance to the issue of genetic drift in ruling that another form of drift constitutes trespassing in affecting the way a neighboring farm conducts its business. Judge Charles Greenacre determined that an application of the insecticide malathion had drifted, and thus trespassed, onto the neighboring organic farm of Rosemary Bilchak and her husband, Gordon MacAlpine. In granting the permanent injunction, Judge Greenacre decided that: ‚ÄúPlaintiffs have an interest, shared by the public in general, in not having their property invaded by third persons or things. Plaintiffs also have a specific interest in not having pesticides invade their property because such invasions will delay or negate their efforts to have their property certified for the production of organic crops.‚ÄĚ The same argument could reasonably be made regarding genetic drift.
In the newly filed brief, the plaintiffs point out numerous errors in the district court decision that warrant reversal. Among them are the lower court’s failure to accept certain facts alleged by the plaintiffs that were undisputed by Monsanto, application of too harsh a legal standard on the plaintiffs to show the existence of a controversy, and neglect of public policy that encourages broad jurisdiction be available to those challenging bogus patents like Monsanto’s.
The brief filed by the plaintiffs with the Court of Appeals is available here.
The Appellants in the suit represented by PUBPAT are: Organic Seed Growers and Trade Association; Organic Crop Improvement Association International, Inc. (OCIA); Food Democracy Now!; The Cornucopia Institute; Demeter Association, Inc.; Navdanya International; Maine Organic Farmers and Gardeners Association; Northeast Organic Farming Association/Massachusetts Chapter, Inc.; Northeast Organic Farming Association of Vermont; Rural Vermont; Ohio Ecological Food & Farm Association; Southeast Iowa Organic Association; Mendocino Organic Network (California); Northeast Organic Dairy Producers Alliance; Canadian Organic Growers; Family Farmer Seed Cooperative; Sustainable Living Systems (Montana); Global Organic Alliance; Farm-to-Consumer Legal Defense Fund; Weston A. Price Foundation; Center for Food Safety; Beyond Pesticides; Northeast Organic Farming Association of Rhode Island; Northeast Organic Farming Association of New Hampshire; Northeast Organic Farming Association of Connecticut; Northeast Organic Farming Association of New York; Western Organic Dairy Producers Alliance; Michael Fields Agricultural Institute (Wisconsin); Midwest Organic Dairy Producers Alliance; Florida Organic Growers; Peace River Organic Producers Association (Alberta and British Columbia); FEDCO Seeds, Inc. (Maine); Adaptive Seeds, LLC (Oregon); Sow True Seed (North Carolina); Southern Exposure Seed Exchange (Virginia); Mumm‚Äôs Sprouting Seeds (Saskatchewan); Baker Creek Heirloom Seed Co., LLC (Missouri); Comstock, Ferre & Co. LLC (Connecticut); Seedkeepers, LLC (California); Siskiyou Seeds (Oregon); Countryside Organics (Virginia); Cuatro Puertas (New Mexico); Seed We Need (Montana), Wild Garden Seed (Oregon); Alba Ranch (Kansas); Wild Plum Farm (Montana); Gratitude Gardens (Washington); Richard Everett Farm, LLC (Nebraska); Philadelphia Community Farm, Inc. (Wisconsin); Genesis Farm (New Jersey); Chispas Farms, LLC (New Mexico); Midheaven Farms (Minnesota); Koskan Farms (South Dakota); California Cloverleaf Farms; North Outback Farm (North Dakota); Taylor Farms, Inc. (Utah); Ron Gargasz Organic Farms (Pennsylvania); Abundant Acres (Missouri); T & D Willey Farms (California); Quinella Ranch (Saskatchewan); Nature‚Äôs Way Farm, Ltd. (Alberta); Levke and Peter Eggers Farm (Alberta); Frey Vineyards, Ltd. (California); Bryce Stephens (Kansas); Chuck Noble (South Dakota); LaRhea Pepper (Texas); Paul Romero (New Mexico); Donald Wright Patterson, Jr. (Virginia); Common Good Farm; LLC (Nebraska); American Buffalo Company (Nebraska); Full Moon Farm, Inc. (Vermont); Radiance Dairy (Iowa); Brian L. Wickert (Wisconsin); Bruce Drinkman (Wisconsin); and Murray Bast (Ontario).
Source: PUBPAT press release
All unattributed positions and opinions in this piece are those of Beyond Pesticides.