Still Suing Nelsons, Other Growers
By Robert Schubert, editor
May 21, 2001
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)
"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
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 they 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.
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
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.
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
The Nelsons aren't the only farmers Monsanto is suing. Attorney
Ronald E. Osman is defending Illinois farmer Eugene Stratemeyer against
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
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
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
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