Dicamba-case filing deadline is end of week

$300M set up in settlementfor 2015-20 soybean claims

Hundreds of Arkansas soybean producers are expected to file claims seeking proceeds from Bayer's $300 million dicamba settlement when the 150-day claims period ends Friday.

Bayer agreed in June to settle class-action lawsuits filed by farmers in Arkansas and other states against Monsanto for alleged crop damage and yield reductions caused by off-target movement of the herbicide. Bayer bought Monsanto in 2018 for $63 billion and assumed the St. Louis company's debts and liabilities, including the lawsuits.

Most of the dicamba lawsuits were merged into one as "multidistrict litigation" and until the settlement agreement, had been put before a single federal judge in St. Louis for pretrial motions and hearings.

Bayer set aside $300 million to settle farmers' claims, and $100 million for attorneys' fees and other administrative expenses incurred from the settlement program. The settlement agreement is for soybean damage incurred from 2015-20. BASF, another manufacturer of dicamba, joined Bayer in the settlement.

Paul Byrd, a Little Rock attorney who served on the court-appointed executive committee that negotiated with Bayer and BASF on the settlement, said last week that he has helped about 150 Arkansas farmers file claims. "It has been some pretty intensive work in my office and for farmers," Byrd said. "I really don't think I could have handled more cases."

Other Arkansas attorneys involved in the initial class-action lawsuits against Monsanto also are filing settlement claims for Arkansas farmers.

Records needed to document the damage include complaints filed with the state Plant Board (or agriculture regulators in other states), results of any laboratory tests and history of crop yields on each field. The yield data must be for the years dicamba damage, was sustained, years without damage, and for "benchmark fields" to set a baseline for the financial losses. Any time-stamped photographs or video of damaged plants could be provided as supporting evidence.

By acres planted, soybeans are the state's largest crop each year. Arkansas farmers planted about 2.8 million acres of soybeans in 2020. According to the 2017 Census of Agriculture, about 3,700 farms in Arkansas produce soybeans, with about 1,200 of those farms producing 1,000 or more acres. Forty-one farms routinely produce more than 5,000 acres of soybeans each year.

Byrd worked for farmers involved in Syngenta's $1.5 billion settlement in 2018 of a nationwide class-action lawsuit over the company's genetically modified corn seed that was rejected by China, causing a loss of sales.

"That was a more streamlined, easier process for farmers," he said. "It was, 'did you raise corn?' in the affected years and, if you did, economists figured out a number to compensate you for your losses. In this [the dicamba settlement], it's yield loss, not a market loss. You have to prove your [dicamba] symptomology and prove your yield losses and show numbers for the non-damage years as well."

Byrd said it would be difficult but not impossible for a farmer to start filing a claim now and complete it by deadline. "It's a tough process and document-intensive," Byrd said. "If somebody were reading the Sunday paper about a [Friday] deadline, they better call somebody at 8 Monday morning and try to get something started. It's just a tedious process."

Farmers who suffered damage are wondering whether they'll be made whole. "I can't even begin to tell someone how much they'll get," Byrd said.

Epiq, a legal services firm in New York City with operations worldwide, has the contract to review claims and determine payouts to farmers based on a formula that includes damaged acres, yield loss, percentage of ownership and average prices of soybeans in the claimant's state. Epiq developed a website, at https://dicambasoybeansettlement.com/ for questions and answers about the process.

The settlement agreement is only for damage to soybeans, which has been identified by weed scientists, agronomists and the federal Environmental Protection Agency as the plant most susceptible to dicamba. Soybean damage prompted several thousand complaints to state agriculture agencies the past four years, including some 1,600 complaints in Arkansas.

Farmers also reported dicamba damage to cotton and other crops. Backyard gardeners reported damage. Those claims must be filed separately.

As pigweed in Arkansas, and marestail and waterhemp in other states developed resistance to other herbicides, including Roundup, Monsanto began genetically modifying soybeans and cotton to be tolerant of dicamba, a herbicide developed in 1967 but limited to pre-planting because of its tendency to drift off target.

Monsanto released its dicamba-tolerant cotton seed in 2015 and dicamba-tolerant soybeans in 2016 without yet having gotten EPA approval for a new dicamba formulation designed to be less susceptible to off-target movement. The new dicamba was the second part of Monsanto's new Xtend seed-and-herbicide crop system. EPA approval came in late 2016.

According to the many lawsuits, Monsanto's rush to market the new seeds led some farmers in 2015 and 2016 to illegally use the older, more volatile dicamba across the top of their crops and forced other farmers to plant the Xtend crops in defense. Some farmers wisecracked, calling it the Xtort crop system. Complaints of damage continued in 2017, when the new dicamba formulations made by BASF and Monsanto were released, and in every year since.

The EPA last fall approved the use of in-crop dicamba formulations by Bayer, BASF and Syngenta through 2025 in 34 states where soybeans are grown.

Bayer, like Monsanto, has defended the Xtend crop system as producing higher yields and the Xtend dicamba.

About two months before reaching last year's settlement agreement, Bayer and BASF were hit by a $265 million judgment in favor of Bill Bader, a Missouri bootheel peach farmer who alleged in his lawsuit that dicamba drift from area soybean fields had damaged or killed some 30,000 peach trees.

Bayer said the verdict in federal court in Missouri didn't influence its decision to settle the other lawsuits. The jury's verdict has since been reduced to $75 million -- $60 million in punitive damage and $15 million in actual damage. Bayer also has appealed the reduction.

"The harm to third-party [non-dicamba tolerant] crop farmers like plaintiff was foreseeable and in fact foreseen by Monsanto," U.S. District Judge Stephen Limbaugh wrote in upholding the jury's verdict. "The duty owed is clear."

Internal Monsanto documents and emails revealed during the Bader trial showed that company officials expected -- and accepted -- that its new dicamba formulation, called Xtendimax, would result in a great number of complaints of damage to other crops and vegetation not tolerant of the herbicide.

Documents at trial also showed that Monsanto didn't want any independent testing of the new dicamba and expected more farmers to plant the dicamba-tolerant variety as a defense. Weed scientists at the University of Arkansas System's Division of Agriculture have said they were allowed by Monsanto to test its new dicamba for its efficacy as a weedkiller but not its volatility, or tendency to move off target as a vapor hours or days after spraying.

Reed Storey, a farmer in Phillips County, has filed claims for damage to his crops. "It went as smooth as I felt like you could expect in something like this," he said last week. "I guess one good thing about a wet spring is I had time to make sure all my information was in there."

Storey plants dicamba-tolerant crops as well as traditional varieties but doesn't use dicamba. "After I had so much damage in 2016 and 2017, I strategically placed my non-Xtend beans as best I could, to keep them from damage. That has helped some, but we've still had areas where we had significant damage."

Storey said he is confident about getting some compensation but added, "As far as the amount, I have no clue whatsoever."