Dicamba Update (Part II)

If you missed Part I in this series, click here.

Lawsuits Begin Rolling In

A number of lawsuits have been filed across the country related to these issues.  Several cases involve claims by farmers against Monsanto, BASF, and/or DuPont alleging that Monsanto violated the law by releasing their genetically modified seeds without an accompanying herbicide and that the companies should have reasonably foreseen that seed purchasers would illegally apply off-label, older dicamba formulations, resulting in drift damage.  Others claim that the new herbicide products are unreasonably dangerous and have caused harm even when applicators followed all instructions provided by law.

Here are quick summaries of some of the pending lawsuits:

  • Landers v. Monsanto Co., No. 1:17-cv-20, was filed in the United States District Court for the Eastern District of Missouri and focuses on injuries suffered in 2015 and 2016, prior to approval of the new dicamba herbicides.  Plaintiffs seek to represent a nationwide class of farmers who have “been victimized by Monsanto’s defective Xtend seed system and its purchasers’ inevitable use of dicamba, a drift-prone herbicide…”   Essentially, the Plaintiffs claim that Monsanto sold dicamba-tolerant seeds in 2015 and 2016, knowing that farmers would not be able to purchase their corresponding XtendiMax herbicide as it had not been approved by the EPA.  Monsanto should have known, they argue, that this would result in farmers applying older, highly volatile versions of dicamba, resulting in damage to neighboring crops and Monsanto should be held liable for this damage. [Read Complaint here].  The Judge dismissed the Civil Conspiracy and Unjust Enrichment claims, but allowed numerous other claims to go forward.
  • Whitehead Farms v. Monsanto & BASF, No. CV-2017-40.  This case involves a proposed class of all Arkansas residents who farm in the state and have documented dicamba drift on their farms.  It was filed in Arkansas state court and alleges that Monsanto and BASF conspired together to sell dicamba tolerant seeds in 2015 and 2016, knowing there was no EPA-approved dicamba herbicide available for these crops.  This resulted in harm to the Plaintiffs’ farms when neighbors planted the tolerant seeds and applied an older version of dicamba off-label to the growing crops. [Read Complaint here].
  • Bruce Farms v. Monsanto & BASF, No. 3:17-cv-000154-DPM.  Filed in Arkansas federal court, this case involves a proposed nationwide class of “all agriculture farmers and entities who raise non-dicamba-tolerant crops and suffered damage to those crops as a result of Defendants’ conspiracy and wrongful conduct…”  They allege that by marketing a “cropping system” in 2016, but releasing only the seeds and not the corresponding herbicide, Monsanto and BASF violated the law, resulting in drift damage to the class when other dicamba products were applied to the tolerant seeds.  [Read Complaint here.]
  • Bader v. Monsanto, No. 1:16-cv-00299, is an individual case filed in Missouri federal court.  The Plaintiff is a peach farmer whose orchard was damaged by dicamba in 2015 and 2016.  He alleges that Monsanto should be liable for its “willful and negligent release of a defective crop system [the Xtend seeds] without an accompanying, EPA-approved dicamba herbicide.”  The Plaintiff argues it was foreseeable that a farmer who planted the Xtend seeds would turn to an older, more volatile, unapproved dicamba product to spray his growing crop.  [Read Complaint here].
  • Smokey Alley Farm v. Monsanto, BASF, & DuPont.  Plaintiffs in this proposed class action, filed in Missouri federal court, seek to represent a  nationwide class (or numerous state classes) of farmers who suffered damaged crops or plants due to dicamba drift or volatilization when dicamba was sprayed on Xtend products.  The lawsuit alleges that the companies should not have released seeds without corresponding herbicides, but also alleges that “Monsanto seed representatives instructed farmers…to illegally spray their fields with dicamba.”  Additionally, they claim that when the herbicides were rolled out in 2017, they were harmful and resulted in damage to neighboring crops even when the label was followed by the applicator.  Finally, they  also take an anti-trust approach, alleging that dicamba damage actually helps increase sales of the genetically modified dicamba-tolerant seeds because farmers may feel the need to defensively plant in case drift were to occur.  [View Complaint here.]
  • Claassen Farms v. Monsanto & BASF, 6:17-cv-01210.  This case was filed in Kansas federal court and seeks to represent a nationwide class of farmers whose crops were damaged by dicamba in 2016 and 2017.  They allege that BASF and Monsanto “jointly collaborated to develop and release a defective and unreasonably dangerous dicamba-tolerant crop system.”  They seek damages both for the 2016 harm, allegedly caused by Defendant’s failure to release the corresponding herbicides, and for 2017 harm, allegedly caused by the volatility and damages caused by the corresponding herbicides which were released by that time.  [Read Complaint here].
  • B&L Farms v. Monsanto & BASF, No. 2:17-cv-00122-BRW.  Plaintiffs are Arkansas soybean farmers seeking to represent a nationwide class of “all persons or entities who purchased Dicamba and/or Dicamba-tolerant seeds for use during the 2017 crop year designed, developed, marketed, distributed or sold by Defendants.”  The farmers argue that they paid a premium, including a tech fee, for the purchase of dicamba-tolerant seeds and were promised a rebate when they purchased the corresponding herbicide product in 2017.  They allege that damage caused by dicamba drift in 2016 “caused farmers to plant dicamba-tolerant seeds in a defensive posture for the 2017 growing season.”  They claim that due to the drift issues surrounding dicamba and the Arkansas ban on the products, they are unable to use the herbicides, could not benefit from the technology they paid a premium to receive, and were unable to receive the rebate that they were promised.  [Read Complaint here].
  • Warren Farms v. Monsanto, BASF, & DuPont, No. 3:17-cv-00973.  This individual case filed in Illinois federal court by a pumpkin and soybean farmer who suffered dicamba drift claims that defendants “misrepresented that their formulations of dicamba could be used safely without causing harm to others through off-target movement.”  Further, they allege that concern over off-target dicamba damage “was a major driver of sales for Xtend crops leading up to the 2017 growing season.”  [Read Complaint here.]
  • There are also criminal charges for murder pending in Arkansas where farmer Mike Wallace was allegedly shot and killed by an employee of a neighboring farm due to a dispute over dicamba drift after Wallace reported drift to the Arkansas Plant Board.  [Listen to NPR Podcast here.]

Monsanto Suit Against Arkansas Plant Board

Monsanto has filed a lawsuit of its own against the Arkansas Plant Board.  The lawsuit, filed October 20 in Arkansas State Court claims that the Plant Board’s ban on Monsanto’s XtendiMax herbicide is “ultra vires, arbitrary, capricious, and otherwise unlawful act not based on substantial evidence.”  Monsanto claims that they have been treated differently than other pesticide companies (like BASF) and that the Plant Board has imposed an “unwritten requirement” that pesticide applicants must submit research to the Plant Board regarding their products, and only research conducted by scientists at the University of Arkansas will meet this requirement.  This requirement, argues Monsanto, is not written, has not been applied to other companies, and violates the Interstate Commerce Clause.  [Read article here and Complaint here.].

Additionally, Monsanto also claims bias on the part of Terry Fuller, a member of the Arkansas Plant Board.  The Board held a hearing on November 8, 2017 to determine whether or not to recommend that farmers will be able to use dicamba in 2018, which formulations will be allowed, and when any cut-off dates may be.  In advance of that meeting, Fuller, sent emails to farmers around the state asking them to attend the meeting or, if unable to attend, to send a letter (of which he included fill-in-the-blank samples stating support for a ban on Dicamba after April 16) to the Board.  Monsanto claims this is clear evidence that Fuller has pre-judged the facts and seeks to tip the public comments in favor of his decision.  Fuller says that he sees this as part of his job representing growers on the Board.  [Read article here.]

At the hearing on November 8, the Plant Board unanimously stood behind Fuller and allowed him to participate in the decision-making process.  When it came time to vote, however, Fuller recused himself.  After hearing from several citizens (17 for the ban and 20 against), the Board voted 10-3 to recommend imposing a cut-off date of April 15 for dicamba application.  There is an exception for of dicamba in pastures, rangeland, turf, ornamental, direct injection for forestry, and home use.  Additionally, potential fines for violations will be increased from $1000/violation to $25,000 per violation.

The proposal will now head to the executive subcommittee of the Arkansas Legislative Council and, if approved there, on to the governor to be signed into law.

Meanwhile, a lawsuit has been filed by 6 farmers against the Plant Board, alleging that the process for selecting Board members is unconstitutional and the Board’s decision to ban dicamba after April 15 was arbitrary and capricious.   [Read Complaint here article here.]

Insurance Issues

There are been a number of articles in the news recently discussing insurance and dicamba drift.  Of course, drift damage is not covered by the damaged farmer’s crop insurance policy.  Generally, injured producers look to the applicator’s liability insurance policy for compensation.  Stories have reported that these claims have been denied for several reasons.  First, claims may be denied if the insurance company determines that their applicator did nothing wrong.  For example, if an applicator somehow violated the label by spraying with wind speeds that were too high or too low or using the wrong nozzle, the insurance company would likely cover that.  If, however, the applicator followed all of the rules, acted reasonably, and there is no evidence of wrongdoing, yet damage occurred, a company may deny coverage.  Second, on the other end of the spectrum, companies will deny claims if they determine their insured knowingly violated the law or the label when applying pesticides.  Third, coverage may be denied due to lack of proof of causation–it may be difficult for the injured farmer to prove exactly who caused the crop damage, particularly if numerous neighbors all applied dicamba.  Finally, concerns have been vocalized that insurance premiums for policies covering spray drift could dramatically increase as a result of the ongoing issues.  [Read a great article on insurance coverage issues here.]

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