Despite procedural backing, a USDA plan could still be frozen in federal court

By WES SANDER

Capital Press

Legal experts say a USDA plan to allow limited production of Roundup Ready sugar beets has strong procedural standing, but that won't protect it from being challenged and possibly blocked by a federal judge.

Environmentalists on Feb. 7 asked U.S. District Judge Jeffrey White in San Francisco for an injunction blocking the plan, an action that would prohibit growers from planting this year. On the same day, a group of sugar beet growers, cooperatives, processors and seed companies asked a federal judge in Washington, D.C., to declare the document sound and protect it from legal challenge.

The industry suit further requests that the court relax the guidelines by which the crop can be cultivated.

Attorney Rhyddid Watkins of Minneapolis-based law firm Feagre & Benson said that although one court decision could influence another, it's possible that the two judges will arrive at conflicting opinions, which could require a resolution in an appeals court.

"How courts would deal with that would be speculative," Watkins said. "Courts can always surprise you."

White has tentatively ordered the sides to submit arguments by Feb. 17.

White last year deferred to APHIS on the question of how sugar beet cultivation should be handled for the next two years, the expected time required for the agency to finish a court-ordered environmental document.

Environmentalists filed suit in 2007 claiming APHIS should have produced the document when it originally deregulated the crop. White agreed, re-regulating beets with Monsanto's biotech genes until APHIS completes the document.

White followed U.S. Supreme Court precedent from a similar case last year involving Roundup Ready alfalfa. In that case, justices decided that a lower court had wrongly prohibited APHIS from attempting partial deregulation of the crop.

But that procedural backing won't prevent White from granting plaintiffs' current request to freeze the document while the court decides whether it meets environmental law, Watkins said.

Attorney Thomas Redick of the St. Louis legal firm Global Environmental Ethics Council said White has shown a readiness to allow for industry hardship, as he is bound to do in considering an injunction.

First approved for commercial production by APHIS in 2005, the genetically modified beets were quickly adopted by the majority of growers in 10 states and now account for 95 percent of domestic sugar production.

"This is a judge who's not afraid to balance the equities," Redick said. "There are billions of dollars of impacts in play, there's a Supreme Court decision ... I think that's a pretty clear message. But the job of the district court is to determine if (the partial-deregulation document) has some holes."

For growers caught in the middle, the uncertainty has only intensified, Redick said.

"I wouldn't take any more steps until you see some more briefings from the San Francisco court," he said.

The sides are meanwhile scheduled to argue before the Ninth Circuit appeals court on Feb. 15 whether this year's beet stecklings must be destroyed, as White ordered in December.

Stecklings are the rootstock for seed plants. If allowed to survive, this year's stecklings will ultimately produce Roundup Ready seed for the 2012 crop.

It's an open question how one court case might impact another, said Feagre & Benson attorney Kristin Eads. With APHIS having published the partial-deregulation document on Feb. 4, the sides have yet to take its significance into account before the appeals court, and the judges will likely consider it a key factor, Eads said.

"I think that's going to be the primary question," Eads said.

The partial-deregulation document formulated by USDA's Animal and Plant Health Inspection Service specifies guidelines for producing and handling stecklings. But plaintiffs could still argue before the Ninth Circuit that the current year's stecklings pose a particular danger, and therefore must be destroyed.

"It's just incredibly difficult to call it," Eads said.