Court injunction could apply until July, sugar beet growers fear

By WES SANDER
Capital Press

With a judge's decision imminent on whether genetically modified sugar beets will be prohibited until July, the industry this week was left wondering exactly how the injunction might apply.

Drew Kershen, a professor of ag-biotech law at the University of Oklahoma, said an injunction, often described as an "extraordinary" remedy, must balance the interests of stakeholders.

That means it should occupy a middle ground -- granting restrictions pursued by the plaintiffs, but also accounting for possible impacts. In this case, that applies to farmers who have already purchased seeds and seed producers who are already planting for 2011, Kershen said.

"The courts are supposed to balance the interests of both sides," Kershen said. "A lot of that has to do with coexistence."

Judge Jeffrey White told litigants in federal court on March 5 he would further review court briefings before deciding whether to impose the injunction. It would apply until July, when litigants are scheduled to argue again whether permanent restrictions should apply while USDA completes an environmental document.

The timing of White's ruling is critical. Planting in much of the growing area typically begins as early as April 1, but as Capital Press reported March 10 on www.capitalpress.com, some growers in Idaho have already started planting using Roundup Ready seed.

White this week pushed that hearing, the focus of the case's remedy phase, back a month to allow litigants time to absorb his decision on a preliminary injunction.

In September, White ordered USDA's Animal and Plant Health Inspection Service to produce an environmental impact statement to support the seeds' deregulation. The suit was filed in January 2008 by the Center for Food Safety, Organic Seed Alliance, Sierra Club and High Mowing Organic Seeds.

Monsanto engineers the seeds to resist glyphosate, the active ingredient in the company's Roundup weed killer. An estimated 95 percent of the industry now uses the seeds.

The case teems with uncertainty, said Kershen, who filed an analysis of the case on behalf of seed maker Syngenta.

Only the case surrounding Roundup Ready alfalfa is similar, Kershen said. An appeal of the injunction in that case will be argued before the U.S. Supreme Court this spring, with a ruling likely to appear by July -- and that outcome is likely to affect the case surrounding sugar beets, Kershen said.

With extensive briefs filed on both sides, White rejected any further advocacy at the March 5 hearing, instead requesting only factual answers to a list of questions. But litigants disagreed over several points, including whether a major sugar company had informed growers last year that sufficient seed existed to support a conventional crop.

Plaintiffs' attorney Paul Atchitoff of Earthjustice disputed claims of potential economic harm to growers who have already made planting decisions for the year, saying they could have chosen conventional seeds knowing an injunction was possible.

Monsanto has claimed an injunction could cause billions of dollars' worth of harm to the industry. That potential damage could have been minimized had plaintiffs not waited until January to request the preliminary injunction, said industry attorney Gilbert Keteltas.

Keteltas rejected Atchitoff's claim that procedural uncertainties prevented the plaintiffs from filing sooner.

"There is one party in this room who holds the keys to an injunction," he said. "It was the plaintiffs."

Monsanto has argued in court briefings that no harm to other crops has been shown, despite Roundup Ready sugar beets having accounted for 60 percent of domestic sugar beets in 2006 and 95 percent by 2007.

But White asked for clarification of an incident in Oregon in which genetically engineered plant material made its way into potting soil, an incident that the industry said would not occur with precautions currently in place.

Atchitoff said the episode only illustrates the "extraordinary difficulty of containing genetically engineered crops for any length of time."

"This is by no means the first incident, or the second or third or fourth," Atchitoff said.

Sugar beets account for about 50 percent of the domestic sugar supply. Nearly all of the seeds are grown in Oregon's Willamette Valley. Those seeds are then grown for sugar in Idaho, California and several states in the West and Midwest.