Judge: Dig up bio-beet seedlings
Extent of ruling's impact on 2012 sugar beet crop unclear
By WES SANDER
Sugar beet industry officials say they don't know how badly a federal judge's decision regarding Roundup Ready seed stock could hurt the 2012 beet crop.
Judge Jeffrey White on Nov. 30 ordered that the current rootstock for producing Roundup Ready sugar beet seeds be removed from the ground. Currently in nurseries, the rootstock -- or stecklings -- would have been replanted to eventually produce seed containing the Roundup Ready gene developed by Monsanto Co. That seed would produce the 2012 sugar beet crop.
USDA issued permits to four seed companies to plant the stecklings in early September. The permits came three weeks after White revoked the federal deregulation of beet seeds with Monsanto Co.'s Roundup Ready genes, pending a new environmental study.
The Center for Food Safety, Organic Seed Alliance, the Sierra Club and High Mowing Organic Seeds, plaintiffs in the original court challenge, sued to revoke the permits, saying they defy the deregulation ruling. The plaintiffs asked White for an injunction to uproot the stecklings before the case progressed.
White will decide in the next few days who will be responsible for ensuring that the stecklings are uprooted.
At press time, defense attorneys were preparing to ask the U.S. Ninth Circuit Court of Appeals for a stay that would allow time for an appeal. But it remains to be seen whether the Ninth Circuit will address the request before White's ruling takes effect on Dec. 7, despite the case's urgency and unprecedented nature.
Nearly 95 percent of domestic sugar beet growers use seeds with Roundup Ready traits, and their beets account for half the domestic sugar supply. No other biotech crop has faced a legal challenge after being so widely adopted as an industry standard.
But that's no guarantee of a prompt response from the Ninth Circuit, said Harry Zirlin, attorney for seed company Betaseed.
"Usually appeals courts don't bend over backwards to get something done on somebody else's schedule," he said.
Luther Markwart, executive vice president of the American Sugar Beet Growers Association, said it's difficult to say how the ruling will impact the 2012 sugar beet crop.
The exact quantity of both Roundup Ready and conventional beet seed stocks are a closely guarded secret, known only to the seed companies -- and White.
"The only way you can draw any conclusions is to have a lot more information than anybody has collectively" right now, Markwart said. "Depending on availability, there may not be any seed for (growers) to buy" for the 2012 crop, Markwart said.
White's ruling would allow stecklings produced prior to Aug. 12 to be used.
Duane Grant, chairman of the grower cooperative Snake River Sugar Co. in Idaho, said the immediate challenge is to add up the protected steckling production.
"The ruling raises the possibility that there won't be sufficient seed supply for 2012," Grant said. "But we won't know that until we know how many of the stecklings were planted prior to the deadline."
Agriculture Secretary Tom Vilsack said Dec. 1 that it was important to recognize that the court had not ordered the destruction of the sugar beet stecklings, only their removal from the ground.
"We are currently engaged in discussions with the Justice Department about next steps," Vilsack said. "We recognize the significance of this to growers. It raises a larger set of questions generally for us to have a much better system than a single judge deciding if a farmer gets to farm or not to farm."
Plaintiffs have argued that the Roundup Ready beets endanger other vegetable crops, which could be contaminated with the biotech trait.
USDA said that the stecklings pose no threat because they don't flower, and because the permits require strict isolation distances. But White said that argument contradicts a key tenet he established earlier in the case: Under environmental law, one stage of a process cannot be separated from the whole.
That means any potential for cross-pollination and contamination occurring later in the crop cycle, once the stecklings become seed plants and eventually a beet crop, must bear on the steckling decision, White said. Past evidence, he said, shows a likelihood of contamination happening somewhere in the process, despite USDA and the seed companies doing their best to prevent it.
"(T)here are examples of where such efforts were ineffective, either because the conditions were later determined to be insufficient or the conditions were not followed," White wrote. "These incidents are too numerous for this Court to declare confidently that these permits provide sufficient containment to protect the environment."
White also refused to temporarily stay his order, something USDA and the industry had requested in hopes of gaining time to appeal the ruling. But he did delay the injunction's start date by a week, anticipating that defendants would instead ask the Ninth Circuit for a stay.
The USDA is in the process of formulating rules that would regulate the planting and cultivation of Roundup Ready sugar beets next year. Seeds for that crop have already been harvested.
Washington correspondent Jerry Hagstrom contributed to this report.