Plaintiffs say USDA did not give enough notice of permit
By WES SANDER
A federal judge's decision on whether to uproot this fall's seed stock for biotech sugar beets could hinge on how well USDA publicized the information that it had permitted the crop.
Plaintiffs in a case challenging production of root stock with Monsanto Co.'s Roundup Ready genes are blaming USDA's short notice of the permitting for their failure to win a restraining order preventing the plantings from happening.
Federal Judge Jeffrey White could rule shortly after an Oct. 22 hearing on the matter, after having ordered USDA to describe "under penalty of perjury exactly when and where it made the information public that the permits had been granted."
Plaintiffs -- the Center for Food Safety, Organic Seed Alliance, the Sierra Club and High Mowing Organic Seeds -- argued in a court brief filed Oct. 15 that "(f)ederal defendants aided in the plan to continue RRSB production before the ink was dry on this court's August 13 (decision), refusing to meaningfully disclose their plans until the last possible moment."
USDA issued permits to four seed companies to plant beet stecklings in early September, three weeks after White revoked the federal deregulation of the seeds with Monsanto Co.'s genes, pending a new environmental study.
USDA's Animal and Plant Health Inspection Service is expected to take two years to finish the study. Following precedent set earlier this year by the U.S. Supreme Court in a similar case involving alfalfa, White left it to APHIS to decide the restrictions under which the crop should be allowed in the meantime.
APHIS has been formulating the interim rules, saying it would take until year's end to finalize them. Meanwhile the season was beginning for the beet stecklings -- the root stock, which is uprooted in midwinter and replanted to produce a seed crop -- so APHIS issued permits to plant.
Plaintiffs promptly filed suit, but not quickly enough. The permits had already been granted by the time they requested a restraining order to stop them, and the four permitted seed companies had begun planting.
Given the circumstances, White ordered plaintiffs to reshape their request and ordered USDA to defend the timing of its permitting process.
Plaintiffs argue that APHIS and the seed industry had plotted to get stecklings in the ground as quickly and secretly as possible, calling it a strategy that the agency used throughout the previous case, which is now referred to as "Sugar Beets I."
USDA argued in a brief filed Oct. 18 that in addition to an Internet page and a press release issued upon granting the permits, the agency's lawyers mentioned during court proceedings in July their intentions to grant the permits.
Taking those factors together, plaintiffs should have known the permits were in the works, USDA argued.
But plaintiffs allege that APHIS did not "meaningfully disclose" the information.
The Web page contains minimal information and obscures distinctions between permitting for commercial plantings and field trials, plaintiffs argue.