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Monsanto sues Nelson farm: A North Dakota family's frustrations with genetically engineered soybeans

By Robert Schubert
Cropchoice.com editor

(February 16, 2001 -- Cropchoice news) -- After a few seasons growing Roundup Ready soybeans, the Nelson family isn't impressed. But the fact that the transgenic seeds haven't increased their yields or decreased their use of pesticides is the least of the Nelsons' worries. Monsanto is suing them. The St. Louis-based biotechnology giant alleges that the family saved the seeds from one season and planted them the next, a violation of the company's patent.

Rodney, Roger and Greg Nelson farm more than 8,000 acres of soybeans, wheat and sugar beets near Amenia, ND.

"Our plea to you, Byron, is we as an individual farm, cannot afford to do battle against this multinational giant," wrote the Nelsons in a letter to U.S. Sen. Byron Dorgan about Monsanto's action against them. "We know that they have already assigned 6 attorneys to our case and we assure you from the bottom of our hearts, that we are not guilty of anything. We feel now we have no where to turn but to our government for help."

The Nelsons' experience raises a number of issues. Do transgenic crops produce what their creators have promised -- big yields and fewer pesticides? Do they contaminate conventional seeds and crops, making it difficult for farmers to successfully grow and market those varieties? Are biotech companies driving family farmers out of business and assuming control of the food supply?

The Nelsons were ecstatic when they heard about Monsanto's Roundup Ready soybeans, engineered to resist its Roundup herbicide.

They gave the new technology a spin in 1998. Unfortunately, the short-season variety, which matures faster in North Dakota's growing conditions, wasn't yet available.

Instead, the Nelsons bought some of the long-season seeds. They wanted to plant them on 68 acres infested with milkweed and then kill the weeds with Roundup. The weeds died, but the plants yielded considerably fewer bushels than their conventional counterparts.

The family took its load of soybeans -- conventional and transgenic -- to the grain elevator, which dumped it all in the same bin.

"At that time, a bean was a bean," says Rodney Nelson. "No one was talking about segregation (of transgenic and conventional soybeans)."

A year later, the Nelsons again raised the Roundup Ready beans. They sowed the short-season variety (available by 1999) on approximately 1,500 acres. And they paid dearly to do it. Aside from the $56,240 seed bill, the family also had to pay $18,800 to Monsanto for the privilege of using its technology.

But the Roundup Ready plants again missed the mark. Growing next to fields with conventional varieties, the modified plants yielded as much as 12 bushels/acre less.

Various studies seem to confirm the Nelsons' experience.

On 300 test sites across the country in 1997, Cyanamid found that high performing non-modified soybean varieties produced yields of up to 20 percent more than Roundup Ready soybeans.

Research at the University of Purdue showed that conventional soybeans yielded 12 to 20 percent more than their transgenic counterparts.

A two-year study at the University of Nebraska Institute of Agriculture and Natural Resources found that Roundup Ready soybeans produced 6 percent less than their closest relatives and 11 percent less than high-yielding soybean varieties. That averaged to three fewer bushels per acre - or 480 fewer bushels on a 160-acre field.

And the University of Arkansas in 1998 found that non-transgenic soybeans were its top performers.

Needless to say, the Nelsons' attitude toward this new technology has soured.

"We don't like gmo (genetically modified organisms) here because it yields less," says Rodney, noting Pioneer Hi-Bred data showing that no genetically modified or conventional seed out produces its 9071 soybeans, a conventionally bred variety.

"I don't know of any farmer growing gmo soybeans if they don't have a weed problem," he says. He can't understand why Monsanto keeps pitching the technology as a big producer. "No farmers are buying into the higher yields stuff."

Lower productivity isn't the only disappointment for the Nelsons. They've used more pesticides on their Roundup Ready beans, not less, a benefit that Monsanto and the biotechnology industry also frequently employ as a selling point.

When he sprays conventional soybean fields with chemicals such as Raptor, Rodney says he uses 2 to 4 ounces per acre. But when it comes time to apply Roundup herbicide to the resistant soybeans, he's had to spray two quarts of the chemical per acre.

"So, I don't know how Monsanto is getting away with saying that we're using less pesticides," he says. He remembers attending a seminar during which a Monsanto representative told farmers they could spray up to 6 quarts of Roundup per acre on the biotech beans without hurting them. "The beans even seem to like it," he remembers her telling the farmers.

Citing studies on bio-engineered corn, E. Ann Clark, professor of plant agriculture at the University of Guelph in Ontario, Canada, disputes the claim that genetically engineered crops reduce the use of pesticides.

She points to a 1999 Monsanto memo in which the company states: "In 1998 use of Bt insect-protected corn reduced or eliminated the use of broad spectrum chemical insecticides on some 15 million acres of US farmland."

In 1998, U.S. farmers grew 71.4 million acres of corn, according to the U.S. Department of Agriculture. They used various insecticides on about 29 percent of that acreage, mostly to kill rootworms and soil insects, Clark says. Problem is, Bt corn doesn't target those insects, but rather the European corn borer. Based on this, she concludes that the biotech corn could have reduced pesticide usage on only about 700,000 to 1.4 million acres, not the 15 million acres that Monsanto asserted.

Clark also points to a 1999 survey of Iowa corn producers that showed "a modest increase (not decrease) in the cost of insecticide per acre, although Bt-corn growers treated only 12% of their acres compared to 18% for non-Bt-corn growers."


One day in mid-July 1999, Joe Jovonovich arrived at the Nelsons' farm to examine their fields and seed receipts. The certified fraud examiner from Fargo, ND told the Nelsons that someone had accused them of saving 1998 Roundup Ready seed and planting it in 1999 (a violation of the use terms) and that he was the investigator.

Their contract with Monsanto was right there for all to see, Rodney says. In 1999, the Nelsons planted Roundup Ready soybeans on approximately 1,500 acres and conventional beans on about 2,300 acres.

Jovonovich examined their seed receipts, but didn't enter their fields because he said he wasn't authorized to take samples. He called back a few days later to say that everything appeared normal.

Then, in November of the same year, Monsanto rang again with news that it wanted to re-inspect their fields. Two examiners spent about 8 hours supposedly collecting samples and running tests on the farm, says Rodney, noting that none of the family ever saw them take any samples.

Seven months passed.

Finally, in July 2000, just about a year after the ordeal began, Monsanto sent a letter. It said that lab tests on the samples inspectors took revealed Roundup Ready bean plants on land where the Nelsons claimed to have planted only conventional varieties. In short, Monsanto was accusing them of breach of contract, of violating its patent.

"At present there is a large discrepancy between the number of acres that you could have planted with the quantity of seed that is indicated by the sales receipts that we have," wrote Monsanto.

In shock, the family called Jovonovich, the original inspector, to ask why Monsanto was taking this action when he had assured them that everything appeared fine. Rodney says he told the Nelsons that the fields he'd seen (but never entered to test because he wasn't authorized to do so) were so clear of weeds that he suspected they had used Roundup Ready beans.

A number of reasons could account for the genetically modified beans sprouting among their conventional counterparts, Rodney says.

Since the Nelsons never accompanied investigators to the fields (they preferred to be alone, and at the time the Nelsons had no reason to mistrust them), it's hard to say whether they ever took any samples at all or, if they did, whether those samples came from the right farm, Rodney says. Eight thousand acres is a lot of area, so the inspectors easily could have ended up in a neighbor's field.

They weren't segregating biotech from conventional plants, he says, so they didn't bother to clean out their planting drills or clean out their combines when going from one field to the next. Volunteer Roundup Ready beans could have sprouted on the acreage with conventional plants. And there's also the question of seed purity.

During their meeting with Monsanto on Sept. 6, 2000, Roger Nelson explained that it would not make sense for them to save some of the long-season seed they had purchased in 1998 to plant the next year on those 68 weed infested acres because they were unfit for the region.

All along and even during the meeting, Rodney says that Monsanto was concerned only about the 1999 crop, not 2000. Then, midway through the session, the company representatives said they might want to investigate the 2000 crop, after all.

The family was prepared for this. To prove that they did not plant saved transgenic seed, the Nelsons had invited the Cass County Extension Service to examine all of their fields in the summer of 2000 and to spray patches of the conventional fields with Roundup. Only the herbicide resistant plants would survive the herbicide. The Extension Service marked their test plots with the aid of global positioning systems. A week later, the agents returned to examine the results, he says. The test showed that less than 2 percent of the crops on their fields were genetically modified.

Monsanto replied that the Nelsons "could have simply gone out to our fields and sprayed something else in those patches to kill the beans," Rodney says. So, they invited the company to pull samples from those patches and take them to the North Dakota State University plant diagnostic lab to determine what killed them. Monsanto refused the offer.

When Monsanto wanted to send investigators to test their 2000 crop, the Nelsons insisted on having the North Dakota State Seed Department do the work at a cost of $100,000. Monsanto rejected this idea, he says.

Although Monsanto refused to allow an Agweek reporter to attend the meeting, it did admit a member of the North Dakota Seed Arbitration Board and Seed Commissioner Ken Bertsch.

In the absence of a neutral third party to acquire and test samples, solving these disputes is nearly impossible, says Bertsch.

The Seed Department offered to assume that neutral role in investigating the 2000 crop, Bertsch says, if both parties agreed to the protocols it established. For example, the Department wanted to establish a chain of custody for the samples from field to laboratory.

Neither side agreed.

"This is a poster child for disputes of this nature if a process is not followed," Bertsch says. If one party acts on its own, as both Monsanto and the Nelsons did, then each party's legal team will question the actions of the other party.

In mid October 2000, the Nelsons received a summons from Monsanto stating that it was suing them in federal court for planting saved Roundup Ready soybean seed in 1999 and 2000. Notably, the company never looked at the 2000 crop or, Rodney says, "even received one of their notorious anonymous tips." Monsanto hasn't been explicit about it demands. According to the summons, the company seeks "in excess of $75,000."

Rodney has found hundreds of Monsanto lawsuits against farmers.

"Even if you don't have a contract, you can't be protected from their tactics," he says. "Monsanto is saying that's not your crop in the field. It's just on loan to you until you sell your crop to the end user. They're suing farmers for the entire value of the crop."

"Why own the farm, when you can own the farmer and the crop?" he remembers North Dakota Agriculture Commissioner Roger Johnson saying during testimony about legislation that would protect farmers from unfair contracts.

He fears that transgenic soybeans, as well as other crops, could spell trouble for farmers everywhere. Growers are planting Roundup Ready beans on weed-infested fields one year, spraying the fields with Roundup and then planting non-transgenic beans the next year. Volunteers and cross-pollination are bound to happen, he says. Seed is no longer pure -- mixing happens through combines, trucks, planters, elevators, bins, volunteer seed and cross-pollination.

"That is a fact of life now," says Rodney, noting Aventis' genetically engineered StarLink corn -- unapproved for human consumption -- that contaminated much of the U.S. corn supply and sparked a host of food recalls last year.


Lori Fisher, director of Public Affairs for Monsanto, says its lawsuit claims that the Nelsons replanted Roundup Ready seed in 1999 and 2000, a violation of its patent.

Samples of the Nelsons' 1999 crop revealed Roundup Ready plants on more than 4,000 acres (this likely includes the approximately 1,500 acres for which the family had contracted to plant the bio-engineered seeds), Fisher says.

The company has not tested the 2000 crop, she says, because the Nelsons wouldn't allow its investigators access to the fields. Despite no crop figures, 2000 remains part of the lawsuit.

"We would prefer not to have a lawsuit," she says, "but in fairness to all the growers who are playing by the rules of the technology agreement that they signed when they bought the seeds, if there's a situation where we believe there's someone who is not playing by the rules, then we try to settle with them out of court."

"Hundreds of thousands of growers are enjoying the benefits of the technology and are abiding by the agreement," she says.


The Nelsons want to avoid planting transgenic crops, but the issue of seed contamination might prevent that.

Rodney got excited upon hearing that a grain elevator near Fargo, ND was offering $1.25/bushel over the market rate for pure non-transgenic soybeans.

But when he looked for seed, no suppliers would guarantee 100 percent purity.

"In fact, one of the seed dealers actually laughed at me when I told him I needed the seed to be certified as 100% pure non-GMO," Rodney says. "He told me that would be impossible and that he didn't think any seed company selling soybean seed today would attempt or be able to make such a guarantee."

One of the suppliers, Pioneer Hi-Bred, distributes a one page memo telling farmers not to expect "non-gmo beans to be pure non-gmo," he says.

In December 1999, the American Soybean Association warned producers not to claim that they are supplying anything that's 100 percent gmo-free "or anything free, because it's not," says Tony Anderson, president of the Association.

All of this leads Rodney to ask: "If you can't buy pure seed, how can you supply a market that wants pure (non-gmo) soybeans?"

The words frustration and expensive sum up the Nelsons experience with Monsanto and transgenic soybeans.

Rodney says he's spending six times as much for gmo seed as he would for saved seed, getting less yield, and receiving less for his crop. Conventional seeds cost $13 per 50-pound bag, half the price of a bag of biotech seed of the same weight.


What farmers like the Nelsons and many others are enduring concerns Theresa Podoll, executive director of the Northern Plains Sustainable Agriculture Society in North Dakota. She and her husband organically grow buckwheat, rye, borage, oats, millet, wheat and flax.

Because of the increasing contamination potential from transgenic crops, Podoll fears that the United States is becoming the supplier of last resort. Buyers will go somewhere else, such as Brazil, where it's illegal to plant and market genetically engineered crops.

"We need to listen to customers," she says. "Whatever happened to the customer is always right? We're busy trying to convince customers to accept our analysis that gmos are safe rather than accepting that they don't want them."

Beyond consumer rejection of these foods, lies a broader, perhaps ethical issue -- stewardship of agriculture's genetic heritage.

Traditionally, farmers keep the genetic record of crops and manage them with the help of land grant universities.

"I'm worried about control of our genetic resources with the patenting of these varieties," she says. "Seed traditionally has been in the public realm. With gmo seeds, corporations own it. It's not just the seed issue, but control over food."

In the industry inspired zeal to cultivate genetically engineered crops, the acreage devoted to conventional varieties has begun to decline. Down the road, she says, if we decide to reject this technology, our seed stocks might be contaminated.

"This technology is fast and shiny, but is it really going to solve agriculture's problems?"

Farmers "perhaps realize that producing more for less money isn't sustainable," says Podoll, referring to the constant push for more yields that doesn't make sense in the face of plummeting commodity prices.