Maine farmers get second chance in court against giant Monsanto

By Whit Richardson, BDN Staff
Posted Nov. 23, 2012, at 6:06 p.m.

WASHINGTON, Maine — A lawsuit brought by a Maine-based agriculture group against global giant Monsanto will receive its day in a federal appeals court after being dismissed by another judge earlier this year.

Oral arguments in the case brought by the Organic Seed Growers and Trade Association, which is based in Washington, Maine, against St. Louis-based Monsanto will be heard Jan. 10, 2013, at the Court of Appeals for the Federal Circuit in Washington, D.C., according to court documents.

The organic seed growers association, along with 82 plaintiffs, in March 2011 sued Monsanto in federal district court in New York. The suit challenges the validity of several patents the company holds for genetically modified crops.

The farmers are also seeking protection from lawsuits in case Monsanto’s genetically modified seed inadvertently contaminates their crops through natural causes such as seed drift and cross pollination.

However, federal judge Naomi Buchwald in February dismissed the suit before it went to trial, saying the plaintiffs’ claims of being in fear of patent infringement lawsuits from Monsanto were unsubstantiated and that “these circumstances do not amount to a substantial controversy and that there has been no injury traceable to defendants.”

Jim Gerritsen, a seed potato farmer in Bridgewater and president of the organic seed growers association, told the Bangor Daily News the judge made “numerous legal and factual errors” that led to her decision to dismiss the case.

The newly scheduled oral arguments will give the plaintiffs, who are represented pro bono by the nonprofit Public Patent Foundation, an opportunity to explain to three appellate court judges how “reversible errors were committed” and why the case should be allowed to continue, Gerritsen said.

The appellate judges also will consider two amicus briefs — one by 11 law professors and the other by 14 nonprofit consumer and food safety nonprofits — that were filed in support of the farmers’ position.

The plaintiffs need two of the three judges to vote in favor of sending the case back to district court, Gerritsen said. “We hope we are given a fair hearing by honorable judges that will take [Judge Buchwald’s] ruling, critique it and put it on a level field,” he said.

Gerritsen said the case is extremely important because of the implications it could have on a farmer’s ability to farm how they please without fear of being targeted by a company such as Monsanto, which Gerritsen points out has a 75-person in-house legal team that independent farmers can’t compete against. Gerritsen said Monsanto has sued farmers 144 times, “and in each and every one they make the farmer out to be the villain.”

“The fact is we are all at jeopardy, our livelihoods are at stake,” Gerritsen said, adding that Monsanto has a record of intimidating and suing farms where their genetically modified crops have shown up. “If Monsanto can gain ownership of our crops when they contaminate them, how can we possibly continue farming?”

For its part, Monsanto claims it is not its policy “to exercise [their] patent rights where trace amounts of [their] seed or traits are present in [a] farmer’s fields as a result of inadvertent means,” according to court documents.

The 83 plaintiffs are made up of independent farms, seed companies and agricultural associations around the country. Plaintiffs from Maine include the Maine Organic Farmers and Gardeners Association in Unity and Fedco Seeds in Waterville. Gerritsen said the plaintiffs collectively represent approximately 300,000 people and probably 25 percent of all certified organic farms in the United States and Canada.

Now that the appeals court date has been set, Gerritsen is busy reestablishing the Farmer Travel Fund, which will help fund farmers’ ability to take time away from their farms to attend the oral arguments in Washington, D.C.

“Farmers in general don’t get away from their farms, so we will need all this time to just prepare a plan so the farmers can get away and travel to Washington, D.C.,” Gerritsen said.

The farmers will attend the event “to observe this oral argument and bear witness to the functioning of the judicial process, and also show by their presence how important this is to them and their livelihood and their communities, and that it’s not just some academic exercise in refining patent law.”

http://bangordailynews.com/2012/11/23/business/maine-farmers-get-second-chance-in-court-against-giant-monsanto/ printed on October 1, 2014