Farm­ers sue firms af­ter ban

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - STEPHEN STEED

Arkansas farm­ers who bought and planted Mon­santo’s dicamba-tol­er­ant seeds are su­ing Mon­santo and BASF now that a dicamba-based her­bi­cide has been taken off the mar­ket in the state.

At the re­quest of Mon­santo and BASF, a fed­eral judge last week moved the law­suit from Phillips County Cir­cuit Court to U.S. District Court in Jones­boro, where an­other dicamba-re­lated law­suit was filed ear­lier in June. Both seek class-ac­tion cer­ti­fi­ca­tion.

The first law­suit, filed June 14, pits farm­ers in

Craig­head and Mon­roe coun­ties — whose con­ven­tional crops were re­port­edly dam­aged by off-tar­get move­ment of dicamba — against Mon­santo and BASF.

The sec­ond law­suit was filed June 20 by 14 farm­ers and farm­ing en­ti­ties in Phillips County who bought Mon­santo’s dicamba-tol­er­ant soy­beans but are now pre­vented from us­ing the ac­com­pa­ny­ing dicamba-based her­bi­cide be­cause its use has been banned in Arkansas.

“Our [law­suit] is dif­fer­ent and unique,” David Hodges of Lit­tle Rock, one of three lawyers who filed the Phillips

County law­suit, said Thurs­day. “In other cases, farm­ers are su­ing for dam­age to crops. We’re not al­leg­ing dam­age to crops. We’re say­ing we bought these ma­te­ri­als, paid pre­mium prices for the tech­nol­ogy, and now we’re out both the money and the tech­nol­ogy.”

Arkansas of­fi­cials on July 11 im­ple­mented a 120-day emer­gency ban on the sale and use of all dicamba. As of Thurs­day, the state Plant Board has re­ceived 845 com­plaints from 26 coun­ties of al­leged dicamba dam­age, pri­mar­ily to hun­dreds of thou­sands of acres of soy­beans. Other crops and veg­e­ta­tion — such as wa­ter­mel­ons, peanuts, toma­toes and or­na­men­tals — that are not dicamba-tol­er­ant

have pos­si­bly been dam­aged by off-tar­get move­ment of the her­bi­cide.

Hodges said he didn’t ob­ject to the law­suit’s trans­fer to fed­eral court “be­cause we re­ally couldn’t find a ba­sis” for an ob­jec­tion. The law­suit was filed in Phillips County sim­ply be­cause the plain­tiffs live there, he said.

Scott Par­tridge, Mon­santo’s vice pres­i­dent for global strat­egy, said Thurs­day by tele­phone that the law­suit has no merit.

“Noth­ing matches the frus­tra­tions of a farmer right now, but we are frus­trated by not be­ing able to fully of­fer the tech­nol­ogy,” Par­tridge said.

He dis­agreed with the state Plant Board’s de­ci­sion to ban the her­bi­cide in Arkansas,

say­ing late-sea­son re­vi­sions to spray­ing re­quire­ments by Mis­souri and Ten­nessee reg­u­la­tors were more “thought­ful and an­a­lyt­i­cal” than a ban. He said the com­pany is work­ing with farm­ers to de­ter­mine the source of so many com­plaints this grow­ing sea­son.

Soy­bean stress could be caused by a va­ri­ety of fac­tors, Par­tridge said. “There’s a lot of talk [about causes of dam­age], but we need to look at each farm, one by one,” he said.

Fed­eral law re­quires her­bi­cide man­u­fac­tur­ers to re­port to the fed­eral En­vi­ron­men­tal Pro­tec­tion Agency any in­ci­dents of off-tar­get drift or dam­age to sus­cep­ti­ble crops or hu­mans. Par­tridge said the com­pany lawyers are in the process of fil­ing those re­ports. “We’ll be fil­ing what­ever is needed in a timely man­ner,” he said.

In an email Thurs­day, a BASF spokesman said, “the case was in fact filed be­fore the Arkansas ban went into ef­fect, so at the time of fil­ing, no one could rea­son­ably claim to have lost the value of the prod­uct they pur­chased.”

The spokesman also said

spray­ing of En­ge­nia [BASF’s dicamba] in Arkansas was nearly com­plete when the ban took ef­fect, al­though Arkansas cot­ton farm­ers have said their spray­ing sched­ules run deeper into the sea­son than those of soy­bean farm­ers.

Mon­santo asked for the trans­fer of the case to fed­eral court as a con­ve­nience for the com­pany as well as the court, and said the po­ten­tial size of the class of plain­tiffs and the un­spec­i­fied amount of money sought would sur­pass any thresh­old al­low­ing fed­eral ju­ris­dic­tion. Plain­tiffs eas­ily could seek more than $5 mil­lion in damages and Mon­santo it­self has made more than $5 mil­lion in profit on the new tech­nol­ogy, the com­pany said in a July 20 court fil­ing.

Mon­santo has said U.S. farm­ers this year planted 18 mil­lion acres of dicamba-tol­er­ant soy­beans, in­clud­ing 1.5 mil­lion acres in Arkansas.

As pig­weed and other farm weeds grew tol­er­ant of glyphosate, com­monly known as Mon­santo’s Roundup, Mon­santo be­gan de­vel­op­ing soy­beans and cot­ton that could tol­er­ate dicamba, a her­bi­cide used since the 1960s around the home and farm. How­ever, be­cause of its ten­dency to drift or va­por­ize at night and move off-tar­get, older for­mu­la­tions of dicamba have been il­le­gal for in­crop use.

Mon­santo be­gan mar­ket­ing dicamba-tol­er­ant cot­ton in 2015 and dicamba-tol­er­ant soy­beans in 2016 be­fore gain­ing fed­eral ap­proval for a dicamba-based her­bi­cide that was sup­posed to be less volatile but ef­fec­tive against pig­weed, mares tail and wa­ter hemp — three scourges to soy­bean farm­ers across the Mid­west. Fed­eral ap­proval for Mon­santo’s dicamba her­bi­cide, called Xtendi­max with Va­porGrip, and BASF’s dicamba, called En­ge­nia, didn’t come un­til late 2016.

Reg­u­la­tors across at least 17 states this sum­mer have re­ported com­plaints of pos­si­ble dicamba dam­age, but few, if any, in­ves­ti­ga­tions into some 1,300 com­plaints have proved how the dam­age was in­curred or how much the ap­proved her­bi­cides or the il­le­gal for­mu­la­tions were to blame. A Univer­sity of Mis­souri weed sci­en­tist re­cently es­ti­mated dam­age at 2.5 mil­lion acres in the South and Mid­west.

Un­til the July 11 ban, only En­ge­nia was al­lowed in Arkansas this sea­son. Mon­santo’s her­bi­cide wasn’t given a la­bel in Arkansas be­cause weed sci­en­tists with the state hadn’t been al­lowed, un­til this sum­mer, to study the chem­i­cal for any ten­den­cies for off-tar­get move­ment. Farm­ers now can be fined up to $25,000 for il­le­gal spray­ing of dicamba un­der a law that took ef­fect Tues­day.

Crop dam­age in 2016 led many farm­ers, in­clud­ing the Arkansas plain­tiffs, to buy the Xtend soy­beans “in a de­fen­sive pos­ture” for 2017, ac­cord­ing to the law­suit.

The plain­tiffs paid a $10-per-acre “tech fee” for plant­ing the Mon­santo seeds and up­graded their spray­ing equip­ment for the En­ge­nia her­bi­cide, the law­suit said. Farm­ers no longer can use En­ge­nia “due to its neg­a­tive ef­fects” and “will re­al­ize a re­duced yield” as weeds take over their fields, the law­suit said.

U.S. District Judge D. Price Mar­shall Jr. will pre­side over both cases, at least tem­po­rar­ily in Jones­boro, as Mon­santo said it likely will ask to have the cases trans­ferred to fed­eral court in Mis­souri, where it also is a de­fen­dant in other dicamba-re­lated cases, in­clud­ing one filed July 19 by seven other Arkansas farm­ers.

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