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The Seed Wars; GE Alfalfa, GE Beet Round III and OSGATA vs Monsanto  

Frank Morton

The Beat Gets Louder, "Just Be Fair"

Farmers occupy Wall Street, and take the biggest 1% in agriculture to Court, with Gusto

In December 2011 the USDA came to our town for a listening session. Six weeks before the Agency had released a draft Environmental Impact Statement regarding deregulation of Roundup Ready Sugar Beets, under court orders to do so as a result of our precedent setting case, Center for Food Safety vs USDA/APHIS (aka Sugar Beet I). The EIS was huge enough to intimidate most citizens into not reading it, but it was just an expanded rehash of the previous Environmental Assessment, concluding once again that RRSB poses no threat to consumers, producers, or neighbors of RRSB seed producers here in Oregon, where the seed is grown. The EIS echoed Monsanto, Syngenta, and Betaseed when it concluded that there was no reasonable threat to non-GE seed growers here in Oregon, as evidenced by the lack of a single reported case of cross contamination.

The testimony from our local public was as harsh against the USDA/Monsanto as the testimony from sugar growers was sweet on them—flown in from Idaho, Montana, North Dakota, Minnesota, and Michigan—these eloquent farmers had nothing but good things to say about Roundup Ready sugar beets. OSU gene flow specialist Carol Mallory-Smith, speaking for herself (not OSU), said that she believed everyone should be allowed to grow the kinds of crops they want to—organic, conventional, GE—but everyone should realize that the GE genes are going to flow. They always have, and they always will escape into non-GE crops of like species, certainly in a wind pollinated crop like <em. Her advice was for the organic consuming public—get real, contamination by GE traits of the organic food system is inevitable—set some tolerances you can live with and hold the industry to those tolerance levels. This isn't what organic consumers wanted to hear, but it also spoke against the bland insistence of the EIS that precautions and safeguards will keep GMOs contained.

WGS crew member Eric Budzynski read from redacted Court documents in the Sugar Beet I case, highlighting the Court’s recognition that cross-contamiation events actually have already occurred, as early as 2006, and that these confidential (unreported) occurrences have been ongoing up to the present. But the nightcap on the evening’s testimony came from a humble fieldman who works for one of our Valley’s most significant seed companies (name withheld here), a domestic supplier of organic and conventional, hybrid and OP seed, and exporter to the Pacific Rim and Europe. The gentleman nervously read a one page typed statement wherein his employer revealed results from genetic testing of their 2010 hybrid chard crops, which found contamination in 20% of their field lots. So much for the EIS determination that it can't happen here.

What USDA will do with these comments is for everyone to guess, but in a related case regarding the same issues in GE alfalfa, the 9th Circuit Court of Appeals ruled just last week that preventing cross-pollination between crops is not within the scope of USDA’s regulatory mandate. Ending transgenic trespass is not the job of regulators, it is the job of...uuhh...interested parties, one assumes. Center for Food Safety has already appealed.

Meanwhile, the Organic Seed Growers And Trade Association (OSGATA) has opened up a more direct attack on Monsanto itself, with a lawsuit challenging the company’s patents on transgenic seed. There are four assertions against the legitimacy of Monsanto’s patents, any one of which would be sufficient to invalidate the transgenic patents altogether.

  1. Monsanto’s patents are INVALID because they fail to meet the UTILITY REQUIREMENT of the US Patent Act, in that they a) do increase herbicide use, but b) do not increase yields, even as they c) do increase long term costs to farmers, and d) are linked to a variety of human and animal illnesses. SUCH A PATENT LACKS SOCIAL UTILITY, ergo it is invalid.
  2. Their patents CANNOT BE INFRINGED by organic farmers when transgenic pollen trespasses onto organic farmland, as this would be a perverse use of the “strict liability standard,” which does not require intent on the part of the farmer to be enforceable. III—Their patents are UNENFORCEABLE because patents may not be used to secure and maintain anti-competitive advantage, and Monsanto has MISUSED its patents in exactly this way, engaging in inequitable behavior to achieve and maintain monopoly benefit.
  3. Monsanto should NOT BE ENTITLED TO ANY REMEDY against contaminated plaintiffs because the corporation has not suffered any contractual or infringement-related loss. Actual damage/income loss is to the contaminated farmer, not the invalid patent owner.

Monsanto initially scoffed that this was a publicity stunt without legal merit, then hired a "best legal team in the country," Seth Waxman, former US Solicitor General, et al., who immediately insisted that OSGATA et al. lacked standing to sue, and asked the Judge to dismiss. Monsanto insisted that it would never sue an organic farmer that had "adventitious presence" of Monsanto transgenic material in their organic crops. OSGATA attorney Dan Ravicher (of the non-profit legal organization Public Patent Foundation) responded to Monsanto that OSGATA et al. would drop the lawsuit if the corporation would make a legal declaration to that effect—hat it would never sue a farmer for having inadvertent GMOs in their crops—and Monsanto reversed. They would not sign a declaration to this effect, regardless of their previous statement.

The most recent development in OSGATA vs Monsanto is good news for our side. On December 28, 2011, Judge Naomi Buchwald asked to hear oral arguments from each side in her Court on January 31, 2012, regarding our standing and Monsanto’s petition for dismissal. This presents our side with the opportunity to not only be heard (rather than be dismissed), but to be seen in the Courtroom. Jim Gerritsen, President of OSGATA, and co-owner of Wood Prairie Farm in Maine (growers/sellers of seed potatoes, et al.), has been doing yeoman’s duty organizing an onslaught of supporting presence for this hearing. We want the judge to see who we are, and how many of us care enough to make the journey to a Manhattan courtroom. Wild Garden Seed is one of 83 seed businesses, individual farmers, and organizations (representing 300,000 members) that have signed on as co-plaintiffs in this case against Monsanto’s ongoing transgenic trespasses. OSGATA has set up a fund to help pay for farmers travels to NYC during the Transgenic Patent Case, and anyone may contribute to this ongoing fund and otherwise support the cause at www.osgata.org OSGATA is paying my way (as former President) to be there for this round, and anyone who wants to support WGS work in this case may make a contribution to the Farmers Travel Fund. If you want to give Jim Gerritsen a boost, visit his family’s farm website, www.woodprairie.com, and you’ll be getting double value for your money.

Dan Ravicher, attorney and Executive Director for Public Patent Foundation, has a strong record of supporting the public’s interests in the patent system (www.pubpat.org), most recently in the very interesting Myriad Genetics case, involving patents on human cancer genes and equal access to diagnostic testing for all breast cancer patients. He is representing the 83 plaintiffs in the Transgenic Patent Case for the expressed purpose of relieving us from the ongoing threat that Monsanto will use its invalid patent rights to intimidate farmers, confiscate their property, and interrupt our livelihoods. Monsanto has a strong record for doing just that to hundreds of farmers already.

As Fate would have it, Occupy Wall Street and OSGATA vs Monsanto have joined the same historical tide, pointing out the excesses of power bestowed on corporate and financial interests in our radically unbalanced world of monopolistic control over essential resources. Seed is as much a natural resource as soil or water, and if you don’t think it’s essential, try planting a garden without it. Any patent system that abets the monopolization of essential social resources has failed in its purpose, which is to spur socially beneficial innovation. In the same way, financial inventions whose sole purpose is to create wealth for some by destroying the wealth of others through trickery or obscurantism has no more social function than bank fraud—which, by the way, is still illegal.

The message from the occupied street and across the land is simple, "Just Be Fair!" Why is more wealth flowing ever more certainly to ever fewer people? Because some basic principles of fairness that were once common sense are now void, and a winner-take-all mentality has been allowed to root deeply into our sense of social justice and governance. Social compassion for the less fortunate has been replaced by a desperate island ethos— "You are off the island—you are free to swim."

Farmers had their day in the street in NYC on December 4, and there was plenty of irony there, as a group comprising less than 1% of the US census made their voices heard by the 1% that can manipulate the world economy. As Kerry Trueman commented on Grist, “Don’t tell these folks to get a job...,” noting that many farmers have to work two jobs in order to make ends meet, or afford health care for their families. There were many comments to the effect that the farmers’ march had a grounding effect on the Occupy Wall Street finale for 2012. I would note that most (not all!) of these marching farmers appeared to be young, or at least "youthful," and had that organic radiance about them.

This is a reflection of the influx of youthful energy that is sweeping into organic farming and animal husbandry all around the country, and it is a sign of the ever-expanding opportunities for employment on organic farms and careers in local food production. I’ve been reading about “organics as a niche” for long enough that it makes me twitch. When Gathering Together Farm has an August payroll with 65 full- and part-time employees in Philomath, Oregon, that isn’t a niche—that’s a major employer. I don’t expect Wall Street to notice, but there are a lot of job-creators, both in the country and within the cities, that don’t mind getting dirty while they work. We are held up in admiration by most of our fellow citizens for our work ethic, our contributions to society and the environment, and the integrity of how we earn our livelihoods. We are the other 1%, and we bear no shame.

Printed in the 2012 Wild Garden Seed Catalog.

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