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story.lead_photo.caption FILE - East Arkansas farmer Reed Storey shows the damage from dicamba to one of his soybean plants in Marvell, Ark., in July 2017. (AP Photo/Andrew DeMillo File)

Bayer announced Wednesday that it will pay up to $400 million to settle claims that dicamba had damaged soybean and cotton crops in Arkansas and other states the past several years.

Several hundred Arkansas farmers could be eligible for payments, attorneys involved in the case said.

Bayer said $300 million will be paid to farmers, with another $100 million going to attorneys' fees and administrative costs that will be part of the claims process.

Bayer also said it will settle other "legacy" lawsuits it inherited in 2018 when it bought Monsanto Co. for $63 billion.

The other settlements include paying up to $9.6 billion on current claims that the herbicide Roundup causes cancer, $1.2 billion for future such claims, and $820 million for claims that other toxic chemicals damaged waterways in some states.

The settlement is for crop damage from 2015 through 2020, Bayer said.

"Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect," Bayer said. "The company expects a contribution from its co-defendant, BASF, towards this settlement."

Bayer and BASF were defendants in numerous lawsuits filed since 2017 involving their dicamba formulations -- Xtendimax with VaporGrip and Engenia, respectively. The lawsuits later were merged into one, to be tried in a federal court in Cape Girardeau, Mo.

"At first blush, I think it's going to be a good thing," said David Wildy, a Mississippi County farmer who served as the class representative for Arkansas farmers in the merged lawsuit. "It remains to be seen what the claims process will involve, but this sounds to be a good deal better than staying in litigation that goes on for so long."

Wildy said his worst year of dicamba damage was in 2017.

In an appearance that year before legislators, Wildy estimated that one of his soybean fields had losses of up to 20 bushels an acre. "This is the most divisive issue I have seen in my 43 years of farming," Wildy told lawmakers, who were debating stricter restrictions on using dicamba in Arkansas at the time.

The use of dicamba in Arkansas has raged since 2015.

The state Plant Board, a division of the Arkansas Department of Agriculture, has received some 1,400 complaints of dicamba damage since then, mostly to soybeans but also to fruits, vegetables, and ornamental shrubs and trees.

Monsanto, and later Bayer, attributed much of the damage to farmers using older, more volatile formulations of dicamba or to errors in spraying the herbicide.

"I experienced damage that was more than just 'visual' but actual yield loss of anywhere from 5 to 15 bushels an acre in 2016, 2017 and 2018," said Reed Storey of Marvell, in Phillips County. "Depending on the year, that's damage across 2,000 acres, a substantial loss of income."

Storey also had joined in on one of the initial lawsuits against Monsanto. "I'm glad to see they're [Bayer] willing to own up to a problem," Storey said. "I'm not sure Bayer realized what kind of problems Monsanto had brought forward before they bought it out."

"It's going to be good news for soybean farmers especially," said Paul Byrd, a Little Rock attorney involved in some of the dicamba lawsuits. "They're going to have to file claims showing their losses, and we won't have that claims process for many months, but they're going to get some money."

Any farmer who received damage can file claims, not just those who joined lawsuits, Byrd said, estimating that about 15o Arkansas farmers were involved in the dicamba lawsuits he worked on. "My hope is that the process is fairly simple," Byrd said. "They may need some legal help to get through it, but it will start with looking at crop yields over the years."

Photographs of damaged plants and any complaints they filed with the Plant Board will be useful, he said.

Byrd said he couldn't say he was surprised by Bayer's decision. "We've all been working on this for a long time," he said. "I guess it got to the point where they were just ready to end it."

Dicamba was used for decades around the farm and home but rarely in fields after crops emerged because few crops were tolerant of the herbicide. Its use on fields was primarily during burn-down, when fields were being prepared in late winter or early spring before planting.

As pigweed, marestail, waterhemp and other weeds developed resistance to glyphosate -- commonly known as Roundup -- and other herbicides, Monsanto began genetically modifying cotton and soybeans to be tolerant of dicamba. It also began developing a new dicamba formulation designed to be less prone to off-target movement than older formulations.

Monsanto released the new dicamba-tolerant cotton seed in 2015 and dicamba-tolerant soybeans in 2016. The seeds were marketed before the federal Environmental Protection Agency approved Monsanto's new dicamba, in late 2016.

Regulators in Arkansas and other states soon saw surges in complaints of dicamba damage.

The Arkansas board received just 15 dicamba complaints between 2000 and 2014. It received 15 complaints in 2015, with the introduction of dicamba-tolerant cotton, and 31 complaints in 2016, when Monsanto released dicamba-tolerant soybeans.

In 2017, the Plant Board received 1,014 complaints, as dicamba-tolerant acreage and use of the herbicide increased. It received 200 complaints in 2018 and 209 in 2019.

This year's ban on in-crop use of dicamba took effect May 26.

Bayer's decision to settle comes four months after a jury awarded $265 million in punitive and compensatory damages to a southeastern Missouri peach farmer for dicamba damage to hundreds of acres of peach trees.

Bayer said Wednesday that it will continue its appeal of that case.

"The only dicamba drift case to go to trial -- Bader Farms -- is not included in this resolution," Bayer said. "The company believes the verdict in Bader Farms is inconsistent with the evidence and the law, and will continue to pursue post-trial motions and an appeal, if necessary."

On June 3, a three-judge panel of the 9th U.S. Circuit Court of Appeals halted the sale of three in-crop dicamba formulations -- Bayer's XtendiMax, BASF's Engenia, and Corteva's FeXapan. The panel said the EPA had ignored risks posed by dicamba when it registered the three formulations.

Bayer said it still "stands strongly behind the safety and utility" of its dicamba formulation, although it announced this spring that it will halt construction of a dicamba production plant in Luling, La. The settlement, it said, will allow the company "to focus on the needs of its customers."

The company said Wednesday that the settlement over Roundup, which is made by its Monsanto subsidiary, involves about 125,000 filed and unfiled claims. The company continues to maintain that Roundup is safe.

"In short, this is the right action at the right time for Bayer," Chief Executive Officer Werner Baumann said during a conference call with reporters. In a statement, he called the settlement "financially reasonable when viewed against the significant financial risks of continued, multi-year litigation and the related impacts to our reputation and to our business."

Monsanto developed glyphosate -- a key ingredient in Roundup -- in the 1970s. The weedkiller has been sold in more than 160 countries and widely used in the U.S. Bayer, which bought St. Louis-based Monsanto in 2018, said last year that all government regulators that have looked at the issue have rejected a link between cancer and glyphosate.

The herbicide came under increasing scrutiny after the France-based International Agency for Research on Cancer, which is part of the World Health Organization, classified it as a "probable human carcinogen" in 2015.

Lawsuits against Monsanto followed. Monsanto has attacked the international research agency's opinion as an outlier. The EPA says glyphosate is safe for people when used according to label directions.

Information for this article was contributed by The Associated Press.

Print Headline: Bayer set to settle dicamba accounts

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