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 in-crop 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.
A Section on 08/04/2017