The problem(s) with canola

Canola is a relatively primitive crop, and as such, retains many of the characteristics of a wild species. Unlike corn and wheat, which have been domesticated by over 10,000 generations of breeding:

Further, because the seed is very small, round, and smooth, it travels readily in the wind. It is not uncommon for windrowed canola to be picked up and blown over adjoining fields. Seed is known to be dispersed by haul trucks - either blown out the top if uncovered or falling off the exterior if not filled tidily. Schmeiser's contaminated fields are to the east side of a major haul road leading to Bruno, Saskatchewan, and the prevailing wind direction is west to east. The initial samples used by Monsanto to charge Schmeiser were actually taken from the roadside - not the sown fields.

Although canola is primarily a selfing species, outcrossing is in the range of 20-30%, and canola pollen can move long distances, several km at least, primarily via insect pollinators. The required isolation distance for hybrid canola seed is 800 m. Who is it that has to absorb the cost of installing an 800 m buffer between GM and non-GM crops on neighboring farms? Pollen has always moved - it did not start with genetic modification. But this is the first time we've called it genetic pollution, because the genes that move are proprietary.

To put these numbers into perspective, Alberta Agriculture has calculated that even at 0.2% outcrossing (with a neighbor's RR canola, for example), a crop yielding 25 bu ac-1 with 3% shattering losses would deposit 10,000 outcrossed seeds ac-1 or 4 outcrossed seeds per m2 (www.agric.gov.ab.ca/crops/canola/outcrossing.html). And that is just the genetic pollution from a single season. The lengthy dormancy interval of canola allows the soil seed bank of contaminated seed to accumulate in the soil with each successive year's addition.

Land can be contaminated with proprietary seed in other ways. If you intentionally planted RR canola [or any other herbicide tolerant (HT) canola variety], shattered RR seed would contaminate your soil next year anyway, and the next, and the next. Emergence of 'volunteer' canola in subsequent crops is nothing new in western Canada - but what is new is that the volunteer plants bear proprietary genes and are tolerant to one or more common herbicides.

You can also bring RR canola into your land inadvertently, as an unavoidable contaminant in your sown crop. Cross contamination of seed crops with GM seed is now so pervasive that seed companies will no longer guarantee "100% GM-free" even in the seed they sell to farmers, for any field crop that has been subject to genetic modification.

In the aggregate, these arguments explain the widespread occurrence of RR canola growing in places where it was never sown, and even where no canola has been sown, in western Canada.

The impossibility of reproductive isolation - both on-farm and post harvest - is nowhere better illustrated than the recent occurrence of cont amination within Monsanto's own RR 'Quest' canola. Seed with an unapproved RR gene was found to contaminate bags carrying seed with the approved RR gene, obliging the urgent recall of thousands of bags of seed, some of which was already on-farm and being sown. This is just the latest example of cross contamination within the seed trade itself, of which StarLink contamination in the corn to be sown in 2001 is perhaps the best known example.

How then can farmers be held accountable for something which the seed trade itself cannot do?

Well, they can't, and even Monsanto knows it. So, Monsanto's position - which the judge inexplicably accepted - is that all the farmer has to do is call them up and they'll come out and deal with it. No matter how the proprietary genes got there, the judge held that the farmer is accountable for it, and they are obliged to inform Monsanto about it - or risk the fate of Schmeiser.

Between a rock and a hard place

Now, this is an interesting conundrum. Put yourself in the position of a farmer. To appreciate the gravity of the choice on-offer, you need to appreciate how Monsanto's hired investigators operate. They come to the door, advise you that you're suspected of brownbagging, and offer you a letter stipulating what you must pay to avoid being formally prosecuted. Should you choose to pay the fee, you are also obliged to sign a letter which states that by signing, you agree to remain silent and tell no one about what has happened, or face further prosecution.

Let's say you know that you have one or more of Roundup Ready, Liberty Link, Navigator/Compas or SMART canola (tolerant to the herbicides glyphosate, glufosinate ammonium, bromoxynil, or some ALS inhibitors, respectively) on your land. You know this because, like Schmeiser, the plants didn't die when you used the corresponding herbicide. So - what do you do?

Do you call up the company (Monsanto, Aventis, Aventis, and/or Pioneer, respectively), inform them that you have infringed upon their respective patent(s), and ask them to come out for a visit - then hope they arrive with a sprayer and not a subpoena? If the latter, no one will ever know, will they? Or do you wait for a neighbor to report you for suspected brownbagging, using the anonymous hotline set up by Monsanto for that purpose?

If the respective compan(-ies) come out and actually do spray out the offending plants, do you call them back again a few weeks later, when late germinating canola has emerged in your wheat or pea crop? How is it that they are going to eradicate these late germinating, potentially seed bearing HT plants, in your established crop? Will they compensate you for damage done to your crop in the process, or from spray drift (a particular problem with the herbicide of choice, 2,4-D) to your adjoining crops - or your neighbor's?

What if it was canola you were intending to plant in the contaminated field? You know that you will not be able to distinguish volunteer HT canola from whatever canola you've planted. You know that volunteer HT canola will set seed and shatter, just like your sown canola, re-contaminating the land with patent-infringing seed. By definition, if you grow canola on land known to have HT canola in the seed bank, your problems will necessarily amplify over time. Where you had one HT plant this year, you could have dozens next year. So - do you abstain from growing canola entirely? For how long, given that fresh contamination can occur annually?

Or do you take responsibility yourself for eliminating the proprietary plants? Do you adjust your crop rotation, your herbicide expenditures -and your bottom line - to cope with contamination that you did not want and could not stop, and that will reoccur annually so long as neighbors choose to grow HT canola?

Like the StarLink debacle which continues to haunt US corn growers, marketers, consumers, government officials, and the seed trade itself, the guilty verdict in the case of Percy Schmeiser illustrates some of the shortcomings of applying GM technology to field crop agriculture. Far from making food cheaper, GM technology will necessarily make food more expensive - and particularly - but not solely - for those who have chosen not to grow GM crops.

Major Victory For Biotech Giant Monsanto:
Farmer Liable for Growing Biotech Crops

by Marc Kaufman
Washington Post
Friday, March 30, 2001

A judge yesterday ordered a Canadian farmer to pay the biotechnology giant Monsanto Co. thousands of dollars because the company's genetically engineered canola plants were found growing on his field, apparently after pollen from modified plants had blown onto his property from nearby farms.

The closely watched case was a major victory for companies that produce genetically modified crops and have been aggressively enforcing agreements that require farmers to pay yearly fees for using their technology.

Stunning. This means that people who are in the neighborhood of genetically modified crops will have to pay royalties to the companies for products they never purchased and got no benefits from.

But the decision in a federal court in Saskatoon, Saskatchewan, was a significant setback for farmers who fear they will be held liable if pollen from neighboring farms blows onto their fields, transmitting patented genes to their crops without their knowledge or consent. Dozens of similar lawsuits have been filed against farmers around the United States, but the Canadian case is the first to go to trial.

The case also highlights growing tension between farmers and large agricultural biotechnology companies, whose high-tech crops are transforming the traditional ways growers tend their fields.

"I've been using my own seed for years, and now farmers like me are being told we can't do that anymore if our neighbors are growing [genetically modified] crops that blow in," said Percy Schmeiser, 70, the farmer from Saskatchewan who was sued by Monsanto. "Basically, the right to use our own seed has been taken away."

Genetically engineered corn, soybeans, cotton and canola have become widely used in the United States, and recent evidence suggests that their pollen can spread to conventional crops. That means any farmer whose neighbors grow engineered varieties could find himself in the same situation as Schmeiser -- especially farmers of easily windblown canola and corn.

A Monsanto spokeswoman in Winnipeg, Manitoba, said yesterday that the decision will help protect the intellectual property rights of the company and of thousands of farmers who pay for its technology. "This is a clear win for Monsanto, and this is very good news for us," said Trish Jordan, manager of public and industry affairs for Monsanto Canada. "What the judge found was that Mr. Schmeiser had infringed on our patent, and awarded us damages."

In his ruling, federal Judge W. Andrew MacKay concluded that a farmer does not have the right to grow crops with a patented and genetically modified gene unless he has an agreement with the company that owns the patent. MacKay also ruled that it didn't matter whether the farmer took advantage of the patented gene. In this case, Schmeiser did not.

The Monsanto canola contains a gene that protects the crop from the herbicide Roundup. With Roundup Ready canola, farmers can spray the herbicide more widely and control weeds more easily.

Seed companies representing Monsanto, and similar biotechnology companies, sell their modified genes to farmers under an agreement that they use them for only one season. Traditionally, farmers have stored their best seeds and replanted them.

Monsanto communications director Lori Fisher said yesterday that seed companies that license Monsanto technology will help farmers remove unwanted genetically modified plants in their fields. She called the Schmeiser case unusual and said that farmers support the company's effort to protect its patent.

But a spokeswoman with the National Farmers Union, which represents 300,000 small farmers and ranchers in the United States, said the organization has been following the Schmeiser case with apprehension. "We're extremely concerned by what liabilities may unfold for the farmer, particularly with cross-pollination of genetically modified plants," she said.

Margaret Mellon, director of the agriculture and biotechnology program of the Union of Concerned Scientists, called the ruling "stunning. "This means that people who are in the neighborhood of genetically modified crops will have to pay royalties to the companies for products they never purchased and got no benefits from," she said.

The decision prohibits Schmeiser from using his seed again and requires him to pay Monsanto about $10,000 for its user fees and up to $75,000 in profits from his 1998 crop. MacKay told the farmer and company that he would impose a financial settlement if they couldn't work one out.

Schmeiser is a fifth-generation farmer in Bruno, Saskatchewan. In his trial last summer, he acknowledged he was aware that Roundup Ready canola had gotten into his crops in 1997. He said he used seeds from that crop for his next year's planting -- as he traditionally did -- but with no intention of taking advantage of the genetically modified plants' engineered trait.

Representatives of Monsanto Canada received reports from nearby farmers in 1998 that they believed Schmeiser was using Roundup Ready canola without an agreement. Private investigators collected samples from Schmeiser's fields and confirmed the presence of the modified canola. They reported that the crop was made up almost entirely of genetically modified plants. Schmeiser denied that, and third-party tests found the presence of modified canola to be significantly less. He became something of a hero in farmer and anti-biotech circles for his fight against the company.

Monsanto Vs. Percy Schmeiser:

by RAFI, the Rural Advancement Foundation International

No Corporate Liability for Unsafe Sex and Bioserfdom

(April 4, 2001 Cropchoice opinion) -- On March 29, a Canadian judge dealt a crushing blow to farmers' rights by ruling that Percy Schmeiser, a third generation Saskatchewan farmer, must pay Monsanto thousands of dollars for violating the Gene Giant's monopoly patent on genetically modified canola seed.

Under Canadian patent law, as in the US and many other industrialized countries, it is illegal for farmers to re-use patented seed, or to grow Monsanto's GM seed without signing a licensing agreement. If the Gene Giants and US Trade Reps get their way, every nation in the world will be forced to adopt patent laws that make seed saving illegal. The ruling against Schmeiser establishes an even more dangerous precedent because it means that farmers can be forced to pay royalties on GM seeds found on their land, even if they didn't buy the seeds, or benefit from them.

Percy Schmeiser did not buy Monsanto's patented seed, nor did he obtain the seed illegally. Pollen from genetically engineered canola seeds blew onto his land from neighboring farms. (Percy Schmeiser's neighbors and an estimated 40% of farmers in Western Canada grow GM canola). Monsanto's GM canola genes invaded Schmeiser's farm without his consent. Shortly thereafter, Monsanto's "gene police" invaded his farm and took seed samples without his permission. Percy Schmeiser was a victim of genetic pollution from GM crops - but the court says he must now pay Monsanto $10,000 for licensing fees and up to $75,000 in profits from his 1998 crop. It's like saying that Monsanto's technology is spreading a sexually transmitted disease but everyone else has to wear a condom.

The GM canola that drifted onto Schmeiser's farm was engineered to withstand spraying of Monsanto's proprietary weedkiller, Roundup. But Schmeiser did not use Roundup on his canola crop. After all, if Schmeiser had sprayed his crop, the chemical would have killed the majority of his canola plants that were not genetically modified to tolerate the weedkiller! Schmeiser didn't take advantage of Monsanto's GM technology, but the court ruling says he's guilty of using the seed without a licensing agreement.

Monsanto (acquired by Pharmacia last year) is the world's premiere Biotech Behemoth. Last week's court ruling has far-reaching implications for farming communities around the world. Last year, Monsanto's GM seed technology was planted on 41.6 million hectares (103 million acres) worldwide. That means Monsanto accounted for 94% of the global area sown to genetically modified seeds in 2000. (Total worldwide area = 44.2 million hectares or 109.2 million acres.)

Thanks in large part to Terminator technology, the Monsanto moniker has became synonymous with GM seeds and corporate greed. Although Monsanto disavowed "suicide seeds" in the wake of international public protest, the company has routinely employed Draconian measures to prevent farmers from re-using patented seed, including the use of private police to root out seed-saving farmers, and toll-fee hotlines to encourage rural residents to snitch on their farm neighbors. Monsanto has threatened to "vigorously prosecute" hundreds of cases against seed saving farmers, but Schmeiser's was the first major case to reach the courts. Schmeiser courageously decided to fight back and speak out against bioserfdom.

Last week's anti-farmer verdict is being hailed as a landmark victory for Monsanto, but it's too soon for the Gene Giants to celebrate. Will the ruling against Schmeiser unleash a new biotech backlash in the heartland?

North American farmers grew three-quarters of the world's commercial GM crops last year, and now they're showing signs of biotech battle fatigue. Illegal traces of Aventis' StarLink maize (unapproved for human consumption) have disrupted grain markets and jeopardized exports. Unsold stockpiles of US maize are at their highest level since GM crops were commercialized. The US government announced last month that it would spend $20 million in taxpayer money to bail out the biotech industry, by purchasing maize seed that was contaminated with Aventis' StarLink genes. (StarLink maize was planted on less than 0.02 percent of all US maize cropland in 2000, but cross-pollination with other maize varieties resulted in seed contaminated with StarLink genes.) To add insult to injury, the federal bailout is using money that would normally go to disaster relief for farmers.

With the advent of genetic engineering and exclusive monopoly patents, the Gene Giants have abolished the farmers' fundamental rights to save and exchange seed. Now farmers are being forced to accept liability for genetically modified crops. How many bullets will they take for biotech?

In North America, where many farmers have embraced GM technology, there are signs of resistance worth noting:

Farmer Must Pay Court Costs

By Murray Lyons
Saskatchewan News Network; Saskatoon StarPhoenix
The Leader-Post (Regina)
April 30, 2002

SASKATOON -- The judge who ruled last year that Percy Schmeiser knowingly violated Monsanto's patent on its Roundup Ready gene in 1998 has now ruled the Bruno farmer should pay Monsanto court costs of $153,000.

That's in addition to the estimated $19,832 the two sides in the long-running patent infringement case agreed was profit from Schmeiser's 1998 canola crop.

The nearly $175,000 in damages and court costs works out to about $175 per acre.

In fact, the amount is likely between $200 and $300 an acre when Schmeiser's legal bills are counted, points out Monsanto Canada spokesperson Trish Jordan. She compares this to the $15 an acre technology use agreement Monsanto requires farmers to pay if they are using a canola variety that has the Roundup Ready gene inserted.

However, Schmeiser has always maintained he never went to producer meetings sponsored by Monsanto to find out the rules, because he grew conventional varieties of canola and always saved seed from one crop to plant his next crop.

In his judgment released a year ago, Federal Court of Canada Judge Andrew MacKay ruled that the seed which Schmeiser had saved from his 1997 crop and used to plant 1,000 acres of canola in 1998 was "known or ought to have been known by Mr. Schmeiser to be tolerant to Roundup, a glyphosate herbicide."

At trial, Schmeiser testified that herbicide resistant canola must have blown into his field in 1997.

"In a court of law, his arguments were found to be implausible," Jordan said Monday.

The Monsanto spokesperson says the amount of the damages decided upon by the judge are less important to the company than the principle of upholding the company's right to license its Roundup Ready gene for use by seed companies and farmers.

She said Monsanto has committed itself not to use any court awards in patent infringement cases for general company revenue. Instead, Jordan says Monsanto will use such court awards to pay for special charitable contributions.

Justice MacKay, who tried the case in June of 2000, ruled April 17 that Monsanto should get about two-thirds of the amount in legal fees and disbursements that the company had submitted for costs.

Monsanto Canada Inc. and its American-based parent, Monsanto Company, had sought costs in the area of $227,365. However, Toronto patent lawyer Roger Hughes and associates submitted a bill in the amount of $726,000 to Monsanto for costs relating to prosecuting the case.

Hughes and an associate will be in Saskatoon May 15 when three judges from the Federal Court of Appeal hear arguments in the appeal of the original judgment.

That appeal was filed by Schmeiser's lawyer, Terry Zakreski of Saskatoon. It lists 17 points as the basis for the appeal.

It argues Judge MacKay erred in ruling a farmer whose field has canola seed or plants that possess the genetic modification described in the Monsanto patent has no right to grow, cultivate, harvest or sell any such seeds or plants should those seeds have come onto his land in some non-deliberate fashion.

Schmeiser testified at trial that it might have been possible that herbicide resistant canola got into his field from seed blown off passing trucks or machinery, from pollen carried to his field by wind, birds or insects or even swaths of canola that were blown onto his field from a neighbouring farm. Those arguments again form a basis to his appeal.

At trial, Monsanto brought in a number of expert witnesses who cast doubt on whether canola seed, for example, could fly off a truck a long way into a field from the road allowance.

During the trial, Schmeiser submitted several dozen photos he had taken showing "volunteer" canola plants growing randomly in ditches, beside power poles and even in the village of Bruno. He also brought in other Saskatchewan farmers to testify who said Roundup resistant volunteer canola had been found growing on their fields.

Those farmers testified that Monsanto brought in people to manually pull out such canola plants from their fields.

In the notice of appeal, Zakreski argues Judge MacKay erred by stating Monsanto had not waived its patent rights by releasing an "invention" into the environment that they cannot control.

On Monday, Zakreski says he and Schmeiser were disappointed with the judge's ruling on court costs and are considering a separate appeal of the costs issue.

Zakreski had argued the court costs in the case against his client should be set as a lump sum of $10,000, partly because Monsanto pursued Schmeiser as a test case "from among many farmers under investigation by Monsanto."

Since the decision by Judge MacKay upholding the validity of Monsanto's patent, the company has pursued legal action against a number of farmers.

Yorkton area farmer Kelly Ryczak settled out of court with Monsanto last month for an undisclosed amount after the company sued him for planting canola in 1999, 2000, and 2001 without a technology use agreement.

In the 20 months since his trial, Schmeiser has made numerous trips around the globe to speak out against genetically modified organisms and to argue farmers have a traditional right to save the seed they plant from one crop to the next.

He even maintains a Web site at www.percyschmeiser.com.

From A Texas Alfalfa Farmer

Friday, May 04, 2001

Sirs:

Are you aware there is more drift than the pollen drift from GMO's?

I have lived on the same farm all of my life and last year, for the first time, I sadly witnessed the destruction caused by Genetically Altered Crops. Our neighbor planted "Roundup Ready Cotton" and hired a crop duster to apply Roundup Ultra on the crop. This chemical is well known to drift...and drift it did, right across the road separating our property. Our crops, vegetables, alfalfa, even trees and shrubbery..all growing plants around our house have been affected. The spraying took place on June 7th, 2000 and we are still seeing the direct results in the damage to our alfalfa. It does not take a brain surgeon to realize that if alfalfa is growing rapidly, translocating nutrients to the roots...the chemicals, over time will also translocate to the roots causing the plants to die. No wonder the insurance industry refused to write policies covering liability for damage caused by genetically modified organisms.

We are witnessing more chemical use...not less as claimed by supporters of GMO's. The land is chemically sprayed before planting, then sprayed again at a certain leaf state stage. The amazing thing is the insects were even more plentiful last year than previously. Could it be that the chemicals have been so overused that they no longer have any beneficial use? In fact, chemical spraying has become so rampant that the EXTENSION SERVICE was warning that such excessive spraying is killing beneficials, while allowing the damaging insects to multiply. This in turn calls for more spraying with even stronger chemicals...which results in higher chemical costs to the farmers but bigger profits for Monsanto.

During the growing season, the first thing we have to do every morning is to gather up dead birds, and yet we hear the word "safe." We are seeing smaller cotton bolls which will naturally result in less lint and losses for the farmer. Widespread losses are being reported from this Roundup drift, and yet we hear "Feed the world." The facts suggest just the opposite...soon we are not going to be able to feed ourselves because of these Genetically Altered Crops.

But there is a personal, human cost and that is, the drift from the spraying of Roundup is turning neighbor against neighbor.

Our alfalfa crop is so damaged by the drift that it needs to plowed up and reseeded on new ground. The seed and the high cost of irrigation prohibit this. Due to the destruction brought on by the drift we will not be able to harvest an alfalfa crop this year and this is our only means of making a living. The neighbor once again is preparing for Roundup Ready Cotton as they know there are no policies in place to hold them accountable for their destruction.

Monsanto Letter To Farmers

Dear Mr. _________,

As you know Monsanto with the assistance of Robinson Investigation Ltd. conducted an investigation (Investigation) to determine whether you had improperly planted Roundup ready Canola in 1999 without being licensed from Monsanto Canada Inc.

We have completed our Investigation and have very good evidence to believe that Roundup Ready canola was planted on approximately 250 acres of land in violation of Monsanto's proprietary rights.

The planting of Roundup Ready Canola without a license is a serious violation of Monsanto's proprietary rights.

Prior to making any final decision as to what steps will be taking, and in an attempt to resolve this issue in a timely and economical manner, we are prepared to refrain from commencing any legal proceedings against you subject to the following:

1. You forthwith pay to Monsanto the following sum: 250A x $115/A = $28.750.00

2. You acknowledge Monsanto has the right to take samples from all of your owned or leased land and storage bins for three years from the date of this letter.

3. You agree not to disclose the specific terms and conditions of this Settlement Agreement to any third party.

4. You agree that Monsanto shall at its sole discretion have the right to disclose the facts and settlement terms associated with the Investigation and this Settlement Agreement.

Acceptance of this offer will be acknowledged by forwarding to Monsanto a certified cheque for $28,750.00 and a duplicate signed copy of this letter by ..... 1999.

Yours truly,
Monsanto Canada Inc.

A Farming Family's Frustrations With Genetically Engineered Soybeans

(February 16, 2001 -- Cropchoice news) -- After a few seasons growing Roundup Ready soybeans, the Nelson family isn't impressed. But the fact that the bio-engineered 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 its transgenic 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 genetically engineered crops produce what their creators have promised -- big yields and fewer pesticides? Do they contaminate non-transgenic seeds and crops, making it difficult for farmers to successfully grow and market non-bio-engineered 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 genetically modified 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, Rodney says.

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 non-transgenic soybeans yielded 12 to 20 percent more than their genetically modified 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-genetically modified soybeans were its top performers.

Needless to say, the Nelsons' attitude toward biotech soybeans 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 non-bio-engineered 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."

Monsanto pays a visit to the farm

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 soy 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 Nelson 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 from the farm 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 rights.

"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, he says. To prove that they did not plant saved biotech seed in their fields with conventional soy plants, 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 lawsuits that Monsanto has filed 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 genetically modified 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.

Monsanto responds

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.

Trying to go biotech free

The Nelsons want to avoid planting genetically modified 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-genetically modified soybeans.

But when he sought out non-transgenic varieties, no seed 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 genetically modified 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.

A corporate future for agriculture?

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 genetically engineered 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, says Podoll.

"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 banks 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 for farmers in the face of plummeting commodity prices.

Monsanto Drops Seed Patent Lawsuit Against North Dakota Family

The Associated Press.
October 30, 2001

Monsanto Co. is settling a seed patent violation lawsuit it filed against a North Dakota farmer and his sons.

The St. Louis-based company had contended that Roger Nelson and his sons, Greg and Rodney, of Amenia, N.D., illegally saved Roundup Ready seed in 1998 and planted it a year later. The Nelsons denied the company's claims. Roundup Ready seeds are immune to Roundup, a herbicide made by Monsanto. It was developed so farmers could use the herbicide to kill weeds while not hurting their crop.

Monsanto, in its federal court case, said the Nelsons had not paid technical fees for some of their 1999-planted seed, a violation of patent laws.

The case led to a new state law allowing farmers to ask the North Dakota State Seed Department to accompany investigators when they collect field samples for evidence.

Monsanto spokeswoman Lori Fisher said the settlement includes a confidentiality agreement. She would not release details.

"We think the resolution is one that is not only fair to Monsanto, but to the Nelsons and to farmers everywhere," she said.

"I'm relieved it's over," said Roger Nelson, who was in Fargo on Monday for physical rehabilitation after Aug. 29 heart bypass surgery. "We're still terribly upset at how we were used."

He said his family is satisfied with the settlement, but also declined to discuss details.

"We feel like we were singled out because we planted part of the farm to Roundup (Ready) and part to conventional," he said. "We were well-prepared to go to court. We had plenty of evidence to show we did nothing wrong. But we looked at the cost of going to St. Louis and for taking our witnesses down there."

Without a settlement, Nelson said, his family had no assurance that the trial would not come during planting or some other busy farming season.

top of page