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Monsanto still suing Nelsons, other growers

By Robert Schubert
CropChoice.com editor

(May 21, 2001 – CropChoice news) -- Monsanto continues its lawsuit against a North Dakota family farm, despite an independent body’s ruling that it found no evidence of wrongdoing. Roger, Rodney and Greg Nelson grow soybeans, wheat and sugar beets on 8,000 acres outside of Amenia, ND, in the Red River Valley. (See February story about Nelson case -- www.cropchoice.com/lead stry.asp?recid=244)

"They (Monsanto) haven’t got any evidence," says Mark Fraase, the attorney representing the Nelsons. "They can’t gather any, yet they persist."

Monsanto would not comment on any aspect of this story.

The Nelsons are among the hundreds of farmers Monsanto is suing, usually on the grounds of patent infringement. However, growers have begun to fight back in the courts.

The St. Louis-based biotechnology-agriculture-chemical giant alleges that the Nelsons saved Roundup Ready soybean seed from their 1998 and 1999 crop, a violation of its patent. Monsanto engineered the transgenic soybeans to resist its Roundup herbicide.

The North Dakota State Seed Arbitration Board found no support for Monsanto’s claims in its March 27 hearing on the matter.

"The evidence does not show, by the greater weight of the evidence, that Nelson Farm is infringing on any Monsanto patents for RR soybeans by planting, growing, and harvesting unlicensed saved RR soybean seed without authorization from Monsanto, or that Nelson Farm will continue to so infringe. Nelson Farm did not plant any saved RR soybean seed in 1998, 1999, or 2000," according to the non-binding Board ruling.

Representatives for Monsanto were absent.

"They said it was a patent infringement case and had nothing to do with the controversy involving seed," Fraase says. "But obviously it does involve seed. It involves the accusation that they (the Nelsons) used saved seed."

He is trying to change the venue for the trial, likely to begin in 10 months, from the federal district court in St. Louis to Fargo, ND.

"It doesn’t belong in St. Louis," he says. "The law is clear that any patent infringement cases must be tried in the state or district where they occurred. Even Monsanto doesn’t argue with that. But, the technology agreement says that must agree to a trial in St. Louis." One problem with this is that Monsanto has accused the Nelsons of saving seed from the 1998 season, yet they didn’t sign a technology agreement until March 31, 1999.

The Seed Arbitration Board frowned on Monsanto’s actions in the case. According to its decision: "Nelson Farm has been cooperative with Monsanto in its investigations and testing. Monsanto, however, has not been very cooperative with Nelson Farm, withholding information on tests, not telling nelson Farm where it sampled for testing in 1999, and failing to attend an arbitration hearing requested by Nelson Farm to define and resolve seed dispute issues."

The Nelsons first purchased Roundup Ready seed in 1998 to plant on 68 acres infested with weeds. They proved to the Board’s satisfaction that they had hauled every bushel from that field to the elevator. Witnesses and scale tickets showed this, Fraase says.

For the 1999 season, he says, the Nelsons purchased enough seed for 1,800 acres, but planted 1,500 acres. This leaves one to question, as the Seed Arbitration Board did, why the family saved seed if they had that much extra. Seed and chemical purchases for the 2000 crop prove that the Nelsons purchased a sufficient amount to plant only for that season.

Perhaps more troubling, he says, is the fact that 40 percent of the fields that Monsanto claims it tested weren’t on the Nelsons’ farm.

Monsanto has taken its battle with the Nelsons outside the courtroom.

Thompson Coburn, the St. Louis law firm representing the company, sent a letter to at least 23 seed distributors in North Dakota and Minnesota in which it instructs them to avoid selling Monsanto’s products to the Nelsons.

"If the Nelsons , or any entity in which the Nelsons have any interest or participate in any way have paid for any product containing Monsanto’s patented biotechnology that has not been delivered or picked up, please issue a return/refund pursuant to your own policies.

As you know, products containing Monsanto’s patented biotechnology are protected by various patents issued to Monsanto under the laws of the United States."

This is a "PR stunt" designed to make his family appear guilty, says Rodney Nelson.

What with the lawsuit and the fact that the Roundup Ready soybeans yielded less and required more use of herbicides than their conventional counterparts, the Nelsons plan to stick with conventional varieties.

But, they admit, avoiding transgenic contamination – it can happen during planting, harvesting, processing and distribution -- is becoming more and more difficult.

Roger Nelson told AgWeek: "A farmer can go out and buy brand new, conventional seed and you can't get any written guarantees that they're GMO-free. If we liked the conventional variety we're using, we might save some of it for seed in 2002. Under a current ruling out of Canada, if that seed contained some Roundup Ready genes, we'd be infringing on Monsanto's patent. It's insanity."

He was referring to Monsanto’s case against Canadian farmer Percy Schmeiser. The Federal Court of Canada ruled that Schmeiser was liable for having Roundup Ready canola in his fields of conventional canola – due to cross-pollination with neighbors’ plants -- and failing to inform Monsanto about it.

An Illinois farmer fights back

The Nelsons aren't the only farmers Monsanto is suing. Attorney Ronald E. Osman is defending Illinois farmer Eugene Stratemeyer against the company.

Before the 1998 planting season, Stratemeyer purchased Roundup Ready soybeans to plant on his farm. He paid the $6.50 per bag technology fee on top of the cost of the seed -- $16 to $17 per bag. However, Osman says, no one asked him to sign the technology agreement that disallows farmers from saving seed.

On July 4 and 14, 1998, a man showed up at Stratemeyer's farm and asked to buy some soybean seeds. Given that it was too late in the season to start a crop, the man said he wanted to grow the soybeans for erosion control. Reluctantly, Stratemeyer agreed to help him. He charged the man only enough to cover the cost of cleaning and bagging the seed -- $7 a bag for enough seeds to plant 140 bushels.

After testing and verifying that those seeds were Roundup Ready, Monsanto officials went to the U.S. District Court, eastern district of Missouri, a judicial forum that has been favorable to the company in the past, Osman says. The judge, with only himself and company lawyers present, issued a temporary restraining order on Stratemeyer.

Monsanto officials proceeded to Stratemeyer's farm where they seized the soybeans he had harvested and notified him of its lawsuit on the grounds of patent infringement and breach of contract. As the technology agreement stipulates, the trial was to take place in St. Louis. In late 1998, Osman succeeded in getting the venue for the trial changed to the U.S. District Court for the southern district of Illinois. The class-action counterclaim against Monsanto, for which Stratemeyer is the only representative to date, is filed under the Illinois Consumer Fraud Act.

Monsanto didn't have what it needed to take its case to court-- a document stating that he knew better than to save the seeds. So, company agents forged his signature -- even misspelling his name in the process -- on a technology agreement. The agents later admitted to forging (long prior to the lawsuit) his and many other farmers' signatures, Osman says.

In response to this document, which remains in the court record, Monsanto attorneys argue that there was an implied contract, he says. In other words, they say that it's common knowledge that Monsanto doesn’t allow growers to save its seeds. To prove this claim, they produced a grower redemption form stating that Stratemeyer had received free pesticide spraying on 50 acres. Problem was, it too was forged.

Stratemeyer believes he has the right to save seed for his own use. He purchased more Roundup Ready soybean seed in 1999 and 2002, paid the technology fees, and never saw a technology agreement.

"You can go almost anyplace in Illinois and buy Roundup Ready soybeans without anyone saying anything about technology agreements," says Osman, who is also a farmer.

Stratemeyer's counterclaim against Monsanto has turned into a class-action lawsuit on behalf of farmers throughout Illinois who purchased Roundup Ready soybeans and whose names Monsanto forged on its technology agreements, he says. The suit is filed under the Illinois Consumer Fraud Act.

The 2001 technology agreements are stricter in that Monsanto can go to the Farm Service Agency to check records on soybean and corn acreage. Then it can check with seed and chemical dealers to know how much Roundup herbicide the farmer purchased. Plus, in 2001 they want growers to agree to seed arbitration rather than filing a lawsuit. Monsanto prefers this because it imposes shorter time limits on the farmers.

Farmers band together to take on Monsanto

In another case, thousands of corn and soybean farmers are involved in a class-action lawsuit against Monsanto in the eastern district of Missouri. This case is based on anti-trust and environmental claims brought under the nuisance and consumer fraud act.

They are seeking anti-trust damages for price fixing and other anti-competitive conduct, says lead attorney Richard Lewis, who expects to receive a trial date in late spring. When it comes to environmental claims they're seeking economic damages for farmers who've been hurt due to regulatory and consumer rejection of genetically modified crops. They are also seeking adequate environmental and human health testing of transgenic crops.

Please see the following stories for past CropChoice stories involving Monsanto, farmers, and legal matters:

1. The implications of the Percy Schmeiser decision, www.cropchoice.com/leadstry.asp?recid=319

2. Mississippi farmer fights for the right to save seed www.cropchoice.com/leadstry.asp?recid=285

3. Colorado wheat grower sees transgenic threats to family farmers www.cropchoice.com/leadstry.asp?recid=255