New suit targets 2 herbicide-makers

Farmers in Craighead and Monroe counties who have reported herbicide damage to their crops have filed a lawsuit in U.S. federal court against agri-business giants Monsanto and BASF.

Filed Wednesday in U.S. District Court in Jonesboro, the lawsuit seeks certification as a class action that potentially could include thousands of farmers from other states. The case was assigned to U.S. District Judge D. Price Marshall Jr.

The lead plaintiffs are Bruce Farms Partnership, a family that farms soybeans and watermelons in Craighead County, and the Curtis Nash family and LA Farms, who grow soybeans in Monroe County. The lawsuit didn’t specify an amount in damages being sought.

The lawsuit was filed by the Duncan Law Firm and Paul Byrd Law Firm, both in Little Rock, and the Kelly Law Firm in Lonoke.

The lawsuit contends that Monsanto, based in St. Louis, and BASF, based in Delaware, worked together and separately in developing genetically modified crops that would be tolerant of dicamba, a readily available but volatile herbicide susceptible to drift. A new, less volatile dicamba was seen as an answer to weeds that, over the years, have grown resistant to glyphosate, commonly known as Monsanto’s Roundup, and other herbicides.

The Arkansas farmers contend Monsanto is negligent and liable for damage to crops not dicamba tolerant because it sold the new seed technology as a “crop system,” comprised of the seeds along with the new herbicide.

Monsanto released the dicamba- tolerant trait for cotton in 2015 and dicambatolerant soybeans in 2016 before gaining federal approval for its new dicamba-based herbicide.

Federal regulators didn’t approve the new Monsanto herbicide until last November, and the new BASF dicamba until December.

In Arkansas, the only dicamba legal to spray across crops this year is BASF’s formulation, called Engenia.

Monsanto’s dicamba herbicide, called Xtendimax, won’t be allowed in the state until studies into its risks for off-target movement are completed by weed scientists with the University of Arkansas System’s Agriculture Division.

Through Thursday afternoon, 65 complaints of possible misapplication of the Engenia product or illegal use of other dicambas have been filed this growing season with the state Plant Board, a division of the Arkansas Department of Agriculture.

That’s an increase from 25 a week ago.

Most of the complaints are from the counties along the Mississippi River. Little River County, in southwest Arkansas, was added to the list Thursday.

The lawsuit contends that farmers who planted the new Monsanto crops last year and then were faced with herbicide- resistant pigweed had two choices: “allow their crops to be destroyed by weed overgrowth” or “spray the only dicamba on the market — old, volatile dicamba — to sustain a viable crop.”

The illegal dicamba moved off-target, damaging crops not dicamba tolerant, such as other varieties of cotton and soybeans, and fruits, vegetables and ornamentals.

Monsanto and BASF, the lawsuit contends, are intentionally forcing all farmers to plant the dicamba-tolerant crops as a defense mechanism.

BASF- manufactured dicambas, such as Banvil and Clarity, are among those that were illegal for in-crop use last year and are still illegal this year.

Two similar lawsuits against Monsanto, but not BASF, have been filed in Missouri, where farmers — especially in the “boot heel” counties near the ArkansasMissouri line — also claim damage.

One was filed in state court, the other in federal court.

BASF declined comment Thursday, with a representative saying the company hadn’t seen the lawsuit.

Charla Marie Lord, a Monsanto representative, said the company couldn’t be held responsible for illegal actions of farmers.

“This baseless lawsuit seeks an unprecedented expansion of the law by attempting to impose liability on Monsanto where, as the plaintiffs acknowledge, Monsanto did not make the product that allegedly caused the damage, did not sell the product that allegedly caused the damage, and, in fact, warned against the very use of the product alleged in the complaint,” she said.

“This suit is simply an attempt to shift responsibility away from individuals who knowingly and intentionally broke state and federal law and harmed their neighbors in the process.”

In Arkansas, the only dicamba legal to spray across crops this year is BASF’s formulation, called Engenia.