Frank Morton

In January 2008, the Center For Food Safety, Organic Seed Alliance, High Mowing Organic Seed, and the Sierra Club, backed by Earthjustice, filed suit against the USDA and its regulatory agency APHIS for failure to follow Federal law when it deregulated Roundup Ready sugarbeets in 2005. I was a witness for the plaintiffs, and being a farmer of organic beet seed, in a position to be harmed by the failure of APHIS to consider the seed production aspects of GE-sugarbeets. I have written about this case in two previous essays, available on the Articles page.

Longtime customers and friends often ask for updates on our fight against the deregulation of genetically engineered (GE) sugarbeets. Before giving the details, the short answer is that our side won hands down. It wasn’t even close. We won on our initial legal complaint (decided on September 23, 2009), that USDA/APHIS did not follow Federal environmental law when it deregulated Roundup Ready sugarbeets in the first place. Then, our resourceful legal team fought back Monsanto, et al. (the Intervenors) in their bid to deny us our remedy—that GE-beet production cease until APHIS does the required environmental impact study (EIS). The Court finally ruled on August 13, 2010, that our side had shown that the balance of harms tilted heavily in our favor, that irreparable environmental harm was not only likely, it was ongoing, and that any economic damage to the Intervenors resulting from this decision was largely damage of their own creation, because the Court had already given APHIS and the Intervenors 11 months to re-regulate and adjust business plans before finally ordering that GE-sugarbeets no longer be sown, grown, or sold, until USDA/APHIS completes an EIS.

Undeterred, APHIS and the Intervenors sought to bypass this unequivocal Court Order by creating a special permit to plant GE-seed to produce propagative roots (stecklings), on the condition that the stecklings not be allowed to flower (permits for seed production would come later). Our legal team immediately filed suit for a temporary restraining order, but the permit-to-planting process was so deftly coordinated (over the Labor Day Weekend) that the seed was already in the ground before the Court could stop it. This led to a second Court case, called Sugar Beet II, over the legality of the special permits and the fate of the stecklings. Once again, the Court reaffirmed our previous victories, and on November 30, 2010 ordered the stecklings destroyed. The USDA and the Intervenors appealed to the 9th Circuit Court of Appeals, and requested an emergency stay on the Court Order. This stay was granted, and then extended until the appeals process runs its course. This means the GE-stecklings will be field planted in mid-winter, and seed production fields will be in place before the 9th Circuit Court decides their fate, and the fate of our case.

In sum, we have three significant Court victories thus far, and though we are still awaiting our remedy, these legal decisions have already moved the conversation about GE-regulation into new topics. Our case has created precedents that will make it far more difficult for APHIS to avoid completing an EIS for all future GE-crop deregulation (no GE-crops in commercial production have had an EIS related to their initial release). We also managed to show that crossing between GE-sugarbeet and non-GE beet and chard had already occurred (as early as 2006) and was known to the Intervenors, despite repeated assertions that no contamination events “had been reported” (true enough—they were secret, unreported occurrences). This has pretty well tamped down the argument that contamination isn't likely to happen.

In the 15 year history of GE crop introductions, there has been an ongoing parade of cross-contamination issues serious enough to invoke recalls (Starlink corn), trade boycotts of US exports (Liberty Link rice), wholesale destruction of foodstocks (pharmaceutical corn in soybean silos), and escapes of Roundup Ready bentgrass into the wild...twice. In all of these cases the GMO product was under regulation by USDA/APHIS.

One of the more revealing episodes of our court battles occurred during the final day of the Sugar Beet II hearing, November 4, 2010. The head of APHIS biotechnology regulation in the west was a witness for the Intervenors, and he had detailed under amicable examination the many procedures and precautionary measures involved in keeping GE sugarbeets under control. As our lead attorney cross examined the witness, it slowly came to light that this very witness, a high-level APHIS administrator, had just the week before been in eastern Oregon, examining some 18 square miles of cropland infested with Roundup Ready creeping bentgrass. When asked if the agency had given public notice of this substantial escape of a perennial rhizomatous herbicide resistant grass into the irrigation canals of a significant farming region of Oregon, the answer was 'No.' APHIS did not notify the public when it was shown the clear evidence that GE creeping bentgrass had escaped, again. When asked why there had been no public notification of this infestation, the administrator said it was because it is still “under investigation,” as if more investigation could change the fact of the existence of 18 square miles of infestation. The public is still awaiting an announcement from APHIS about an event that has already been reported by a newspaper writer who was in the courtroom. APHIS seems to repeatedly fail the watchdog test.

Past experience shows that for every new GE crop species that comes to field production, there comes a trespass of that GE product into crops or environments where it is unwanted, undesirable, and permanently damaging to businesses, public interest, and the environment.

One of the casualties of this fight to preserve the integrity of our seed growing region was our own seed catalog for 2010. When we would have normally have been producing the catalog last winter, we were instead producing documents for the inspection of the USDA and the Intervenors. Once my deposition was over in early February, the planting season was on, and we elected to make use of our previous catalog for a second year.

Considering the outcomes thus far, this was a worthwhile sacrifice. They say the wheels of justice grind slow, but they grind fine. Perhaps by the next catalog, we will know the yield of this work.

Printed in the 2011 Wild Garden Seed Catalog.