Updated below with Correction
Organic farmers from around the country — including David Zuckerman and Rachel Nevitt of Full Moon Farm in Hinesburg — are taking their lawsuit against seed giant Monsanto to the next level.
Having lost round one in federal court in February, the farmers have appealed the case and are asking another court to pre-emptively block Monsanto from suing them for patent infringement should their crops become cross-pollinated with the agri-giant's genetically-engineered seed.
The Organic Seed Growers and Trade Association (OSGATA), representing 83 farmers and farm organizations that claim more than 300,000 members, argue that they are forced to sue Monsanto pre-emptively to protect themselves from the company's "abusive lawsuits" against unsuspecting farmers whose organic crops become contaminated.
In February, a federal judge in the Southern District of New York sided with Monsanto and dismissed the case, saying the organic farmers' fears about contamination "do not amount to a substantial controversy and that there has been no injury traceable to defendants."
Last week, OSGATA appealed that ruling to the U.S. Court of Appeals for the 2nd Circuit. The Northeast Organic Farmers Association of Vermont and Rural Vermont are co-plaintiffs in the case. Click here to download the farmers' appeal brief.
Zuckerman, a former state legislator who runs Full Moon Farm with his wife Rachel Nevitt and daughter Addie (pictured), says OSGATA's lawyers made a strong case for an appeal. While the family's 151-acre vegetable and poultry farm isn't at risk of cross-pollination from Monsanto seeds, such he says, "There are a couple of plaintiffs who have very clearly stopped growing because of a fear of being sued by Monsanto. One farmer in Iowa is surrounded by geo-engineered soybeans. When 90 percent of the soy and corn in this country are grown using generally engineered technology, there's not a whole lot of places you can go to grow without that risk."
(Correction: Zuckerman said his farm hasn't been subjected to cross-pollination that he knows of, but that he takes steps to avoid contamination from GMO crops, such as limiting where he grows corn. Seven Days regrets the error.)
Zuckerman notes that the farmers' appeal isn't without risk: If they lose in appeals court, the plaintiffs could be liable for paying Monsanto's attorneys' fees.
"There are some people writing that 'Zuckerman is doing this for publicity.' No were are not," the former lawmaker says. "And now we're taking a risk that we'll have to come up with a couple grand in defense costs if we lose the appeal."
According to OSGATA, Monsanto every year investigates 500 farmers for patent infringement. To date, 144 farmers have been sued by Monsanto, while another 700 have settled out of court for undisclosed sums, OSGATA says.
Monsanto has strenuously denied suing farmers over what it calls "trace amounts" of cross-pollination. Before serving the lawsuit on Monsanto in 2011, OSGATA asked the company for a legally-binding promise that it would not sue should their members' crops become cross-pollinated with Monsanto's patented seed. According to OSGATA, Monsanto refused to provide such assurances but responded with a statement that read, "Monsanto's policy never has been, nor will be, to exercise its patent rights where trace amounts of its patented seeds or traits are present in a farmer's fields as a result of inadvertent means."