And the Backstory Underlying Them— Starting With the Parable of the Transgenic Paint On January 13, 2014, the Supreme Court failed to accept our petition to review the lower court decisions in our lawsuit against Monsanto, so a new lawsuit will need to be prepared with a new group of plaintiffs. The lower courts said (among other things) our initial group of plaintiffs did not have a sufficiently immediate grievance against Monsanto to allow us the legal standing needed to bring our lawsuit to court.
Basically, we were told we needed to have our neck in the guillotine with the blade falling before we could establish standing to bring our lawsuit. This means we would need to place ourselves on the block to be sued for patent infringement before standing could be achieved. The reason Monsanto wants to maintain the ability to file patent infringement lawsuits arises from their ability use that threat to chill damage suits by farmers whose crops have been contaminated by their transgenic crops.
Our story was eminently worthy of Supreme Court review because neither the Federal District Court or the Federal Circuit appellate panel looked at the underlying facts of the case presented in our complaint or the pertinent precedents cited therein. They wrote divergent decisions based on their own ideas and their own prejudice that the rights of Monsanto to do as they do need to be protected regardless of the public health and environmental impacts. This is nothing short of a public atrocity given the costs involved and the existing extent of the public health destruction, but it is easy to believe the Supreme Court did not understand all the complexities of the case and did not take the time needed to read all the documentation.
Believably, the Supreme Court might not have wanted to enter the arcane thicket of patent law in such a case, but the matter at hand was: Should or should it not be possible to present evidence against Monsanto's technology? In the end the courts said it should not be possible, at least not by our group. It remains to be seen if they would find some fault with the new group, too, but at this moment pursuing the new plan is the best option available to get a hearing. Time will be needed to do all the necessary work.
We need to follow what the court has said because the issues at stake are too important to let drop. We cannot wait to see what someone else may do.
Let me try to explain the threats felt by organic, biodynamic, and other non-transgenic farmers in a way that may help cut through all the complexities:
Just for the sake of an illustration, let’s think of Monsanto’s transgenic seeds as if they were transgenic paint with the same characteristics and governing rules as the transgenic seeds. Instead of talking about farmers and seeds, a parallel picture will treat the seeds as if they were transgenic paint used by homeowners.
In an honorable and just nation, without an amoral government, collaborating courts, and politically-empowered corporations, our lawsuit against Monsanto, OSGATA et al. v. Monsanto, would be viewed as a property rights case or a property trespass case. It could also be viewed as a human rights case. Because it is not viewed that way under the law, Monsanto and their customers are allowed to spray patented transgenic paint on the houses of many people from across the property line. Even worse, the transgenic paint has the capacity to spray itself.
Then Monsanto is allowed to assume self-serving control over the property rights of those who have been sprayed. They can sue the damaged people for possessing the patented transgenic paint on their houses without having paid a royalty. It does not matter if people do not want the transgenic paint on their houses; Monsanto is still allowed to sue them for possessing their patented transgenic paint without having paid for it.
This is called ‘strict liability’ in patent law. There is no ‘fair use’ exception. If you possess the patented object without having paid for the right to use it, you can be sued for patent infringement. Worse than that, Monsanto needs to sue everyone in possession of their patented paint. This is part of the diligent defense of their patent rights. If they do not defend their patents, they can lose them, but they can also use their patent powers as a means of intimidation, and they do that, too.
The “strict liability” rule has been in place since long before the patenting of self-replicating biological products, but in the case of self-replicating biology, it make no sense. Now on June 10, 2013, instead allowing the irrationality of this rule to be reexamined, three judges of the Appeals Court of the Federal Circuit in Washington, DC put only a tiny restriction on Monsanto’s right to demand a royalty payment. They said that was enough to make any further adjudication unnecessary. They did this because they determined Monsanto had given us, through their court testimony, the equivalent of a binding covenant under the rule of estoppel. This rule stops Monsanto from doing tomorrow what they promised not to do today. The problem is that the court defined the covenant so minimally they made it almost useless in the real world.
Under the court’s restriction, if the spraying of the errant transgenic paint only changes the the color of the house by less than one percent, Monsanto cannot sue for payment of a royalty, and as a result, you or any other damaged homeowners can sue Monsanto or their customers (those wanting to use their transgenic paint) for damages without any threat of countersuit for patent infringement.
The trouble is: Monsanto has an adhesion contract that is automatically accepted by their customers when they open a can of Monsanto’s transgenic paint. The customer is made responsible for any damage to others, and Monsanto limits its own liability to replacement of the paint. This is a problem because even though customers may use the transgenic paint properly and as directed, it can still spray itself on the houses of other people.
Monsanto understood this problem before they sold the first can of their transgenic paint, and that would be the reason they have transferred the liability to their customers. Many of these customers have not read the terms of the contract they have agreed to. After all, how many people do you know who carefully read the terms of the adhesion contracts on products they buy and use?
Not only can the spraying and spreading of the transgenic paint happen, it will happen routinely, and the customers (that is: the royalty-paying users of the transgenic paint) are automatically forced to accept all liability when it does happen. The automatic spreading of the transgenic paint is inevitable, but Monsanto accepts no responsibility for it. Since they know it will happen, they want to put all responsibility on others. This is part of their business model, their way of pursuing profits and protecting themselves from unwanted costs.
Now if Monsanto’s transgenic paint changes your house’s color by more than one percent, according to the court’s rule, Monsanto is once again free to sue you and any other similar homeowners for possessing their patented transgenic paint without having paid the required royalty. If you or other homeowners sue for damage to your houses, Monsanto can counter sue for patent infringement. That is their way of preventing you from suing for damages.
The Monsanto customer using the transgenic paint might be required to pay you for the house damage if you sued them, but Monsanto would get royalties and infringement damages which can be tripled for violation of their patent rights. Soon homeowners would learn that suing for damage to their house would be a mistake costing them more for patent infringement than they would get for the damage.
Soon all houses everywhere would be speckled or covered with various amounts of Monsanto’s transgenic paint until finally all the houses everywhere were painted entirely transgenic—as the paint spreads itself. That will happen because the transgenic paint not only sprays itself, it spreads itself in other ways, too. Further, it can change the DNA of any living things it contacts, spreading its genes into whatever living genes it encounters. That’s how it is that Monsanto’s transgenes have been found infecting the gut bacteria of bees.
Just as in this parable of the trespassing transgenic paint, in the actual seed issue we address in our lawsuit, Monsanto's biotech seeds are capable of spreading their transgenes and enabling them to replicate on their own. Like the transgenic paint, the transgenic seeds aggressively assert their DNA the same as a rapist. That’s how biology works; living things work to reproduce themselves wherever they can. Man-made biology is no different. The transgenic paint spreads itself from small speckles until it has covered the whole house and spread itself around the neighborhood; it can also get into the house and into the people who live in the house.
Monsanto's seeds can assert themselves this same way until they have taken over everywhere, becoming, in some cases, uncontrollable weeds only killable through the use of increasingly dangerous chemicals or other radical methods. Even if they are burned or plowed under, they may grow back from the remaining rootstock. This has happened with Monsanto’s transgenic canola. Birds and pollen movement has spread it everywhere—to the point it is widely considered impossible to grow organic canola in the United States. It has become a virtual weed found now far from any canola fields.
If the paint spray starts out at less than one percent, maybe as small hardly noticeable speckles that could be mistaken for particulate pollution from industrial smokestacks or city buses, a damage suit would need to be filed quickly and the transgenic contamination would need to be eradicated just as quickly, because the amount of transgenic paint will soon grow and spread until it is much more than one percent.
Nonetheless, no amount of vigilance and remediation is likely to be enough. The house is instantly subject to new contamination because of the many customers using Monsanto’s transgenic paint to paint their houses by their own preference. They may like the idea because it means they will never have to paint their houses again, and they may not understand the risks because Monsanto has told them their are no risks. In this case, the transgenic paint would behave like Monsanto's transgenic perennial alfalfa. Once started, it will exist in perpetuity. Thus, it will become a weed just like canola.
Because the paint self-replicates, no further future painting will be needed. Even if they do not like the color, many customers would be willing to accept transgenic paint because it is economical. As long as it saves them on the cost of having to repaint their houses at increasingly higher future cost, that is all they care about. Its the same with farmers. They do not worry about future liabilities; they only care about the immediate cost savings.
Many homeowners would likely accept transgenic paint the same way farmers have accepted transgenic seed until they find the transgenic paint has spread inside their houses, not just outside to other people’s houses. At first, the customers have seemed to be unconcerned about what happens to other people as long as Monsanto’s transgenic paint saves money for them; that is enough. Most people do not give much thought to the future or to the consequences of what they do. If they did, many things would be different than they are. For example, no one would litter and the ocean would not be filled with bits of plastic, floating plastic bags, and even tooth brushes.
Many real world details make the June 2013 decision by Judges Dyk, Bryson, and Moore of the Appeals Court of the Federal Circuit in our lawsuit insufficient, amoral, unjust, and nonsensical. The decision is pro-Monsanto and pro-corporate in making the window of protection so small. Even if it is a step in the right direction, it is a sham. At best, it is like giving a drought-stricken farmer with no feed for his cows one bail of hay when he needs 100 bails, or giving a truck driver one gallon of gas when he needs 100 gallons to get where he needs to go.
Yet, the Appeals Court judges were still not as incredibly, atrociously, and negligently nonsensical as Judge Naomi Buchwald of the Federal District Court of Southern New York in February 2012. The Appeals Court judges at least made a timid, irrational baby step in the general direction of justice. They likely did not want to risk taking a big step lest they anger the lobbying corporate overlords that exercise extraordinary power over the political demigods.
Probably, the Appeals Court judges were like many urban citizens with no exposure to agriculture. From that perspective, they may have lacked the knowledge required to do better or to understand the failure of their effort to address the reality—or do much more than piss into the wind when all the ensuing and evaded health and environmental damage is understood. But still they tried, even if pusillanimously, to do something helpful, and they appeared grateful the issue was being raised as Judge Buchwald was not.
Judge Buchwald seemed self-certain in her understanding of everything she needed to know to write her short hubristic decision. She decided the co-plaintiffs in our lawsuit had no judicable, meritorious claim against Monsanto’s contamination even though the threat of it hangs over their neck every day like a sword of Damocles. It continuously threatens their ability to grow the safe, healthful, nutritious, and uncontaminated food they are committed to growing for the benefit of the people wanting to eat food that is not transgenicly contaminated.
The risks of contamination threaten the integrity of an organic or biodynamic farmer’s livelihood continuously, but Judge Buchwald said farmers should be “comforted” by Monsanto’s Web site promise not to sue for “trace” and “inadvertent” contamination even though they do not define the terms and refused to put them in binding enforceable language. Either Judge Buchwald was bamboozled by Monsanto, or she wanted to protect their interests without examining the costs. There is not other possibility.
Even though farmers must pay to create buffer zones or barriers that will never be sufficient—and accept the fact that once contaminated they might then contaminate someone else and bear the liability and the moral guilt for that, Judge Buchwald said we should have no legal recourse to ask the court for a Declaratory Judgment to protect against patent infringement lawsuits—or to question the validity of Monsanto’s abusively empowering patents. Following her reasoning, she should have no recourse either if she would be gang raped in the street on her way home from work.
All Judge Buchwald could hope for is a promise by the gang that they would not sue her for possessing trace amounts of their possibly patented biological material. If Monsanto can patent its seeds, there is no reason the gang would not be able to patent their seed, especially if they had modified it in some creative way to leave a permanent mark or asserted advantage on the progeny. In point of fact, the gang might all possess Monsanto’s patented transgenes in their bodily fluids, so that would make them eligible to be sued for patent infringement, especially if they were found to be spreading Monsanto's product at will.
If 90% of tested Canadian women of child-bearing age had Monsanto’s Bt transgenes in their blood, and 80% of their feti also had them in their blood, the question is: where would they not be? They are likely to be in the dog, the cat, the birds, and certainly the bees. Maybe the bees are only the first creatures to be dying from their contamination.
The threat from Monsanto is continuous against farmers and everyone else because they are continuing to sell their transgenic paint, and it is being spread everywhere without any control over where it goes, who buys it and how they use it. For example, under certain conditions, it might rise on an air convection and come down anywhere, even on a different continent or in a different nation. Because it can grow biologically in the digestive tract of people, it can be transmitted by people, and because an antibiotic-resistant marker gene is used in making it, it can spread antibiotic resistance horizontally into those coming in contact with it.
When Judge Buchwald said we should be “comforted" by Monsanto’s self admittedly vague promise not to sue if people like us possess “inadvertent," "trace" amounts of Monsanto’s patented biotech paint even though the promise was entirely undefined until the Appeals Court arbitrarily, nonsensically, and minimally defined it for them, she also told us our assertion of a claim against them was “intolerable” as if we should be punished for seeking the opportunity to present evidence about the health and environmental destruction. Then after the Appeals Court’s decision, the determined Binding Covenant is still unenforceable by us unless the contamination is below one percent, which may be too little to even find. If the contamination is above one percent, royalty claims can then again be used as a counter-threat against the right to sue for property damage. The worst part of this is that the contamination will likely remain below one percent for only a brief period of time. When it is growing, it will spread itself quickly, and in the case of a perennial crop like alfalfa, it flowers and is cut multiple times each year. Bees and other insects can spread it widely.
Because the contamination is dynamic and spreads itself, maybe it would be possible to argue that a damage suit should be allowed without threat of a countersuit for patent infringement no matter how much the amount of current contamination. Under this argument, it would be clear that the contamination at some time in the past was between zero and one percent, and inasmuch as the absolute power of the strict liability rule had been arbitrarily eroded for contamination under one percent without establishing any reason that limit made any particular sense or came from any statement Monsanto's attorneys made, maybe grounds would have been established to erode strict liability for self-replicating biological products at any level when they contaminate those with no interest in possessing them.
At least, that outcome might be hoped for if logic would prevail, but this idea would likely need to be affirmed in court before it could be relied upon. Until then, Monsanto could wait a little while and then sue an damage claimant for patent infringement after the amount of the contamination had grown greater than one percent. The nonsensical divergencies in the two lower court decisions needed to be sorted out and repaired somewhere, but the Supreme Court in their failure to review the issues must have possessed neither the understandings nor the wisdom to do that. If they had done that, a second lawsuit would not have been necessary.
Since damage is damage no matter the percentage, and since no one knows if any amount of contamination is safe (it probably is not as long as it can continue to grow or change the DNA of whatever living biology it comes to contact), the found amount of continuously changing contamination should not matter. Under this idea, the argument would be made that contamination of more than one percent is inevitable and contamination of less than one percent only a brief temporary matter that might not be caught at the moment when it existed. Under this view, no patent infringement lawsuits should be possible no matter if the contamination is over one percent. This would be a logical extension of the court's decision whether or not the Appeals Court judges would have intended or thought about this logic. Most important, no amount of contamination can probably be considered safe as long as it can continue to grow or change the DNA of whatever living biology it comes to contact.
Whereas Judge Buchwald in New York City produced an empty eggshell, maybe filled only with sulfur dioxide gas, the Appeals Court laid a broken egg or a partial egg in the middle of the street, and now it remains to be seen the courts in the future can do better. The Appeals Court's decision needed to be appealed to the Supreme Court, because threatened people everywhere were denied the right to request and obtain a full, independent, objective review of Monsanto’s technology. That is needed in the public interest because the government has neglected and evaded this responsibility for decades. The remaining hope rides on the belief an independent judiciary still might exist somewhere in the United States, but so far that belief has proved to be a chimera in the face of the corporate political power of Monsanto and their allies.
Two different and divergent court decisions have contorted themselves absurdly to try to stay in lockstep with the corporately-subservient political establishment. We claim Monsanto’s transgenic seeds have no public utility because they damage the public health and the environment, so none of their patents ever should have been granted.
As long as it is impossible to have the merits of the technology examined before the Congress and the Executive branch of the government, including the Patent Office, maybe entirely because of the power of corporate lobbying and campaign contributions in the U.S. political system, the Judiciary is the only remaining branch of the government where review and redress might still be possible—if the courts are not equally dedicated to protecting the corporate interest ahead of the people’s interest and to preventing the truth from being known and established. If the Judiciary proves to be in monolithic lock-step with the rest of the government, then the moral integrity of all three branches has been willfully, inexorably, reprehensibly, negligently, and pusillanimously compromised.
We want our day in court, so the issues can be assessed on their merits with both sides able to present their evidence. When that is not allowed, the government is definitively proven to be uninterested in determining or affirming the truth. The question in this case is whether or not damage to the public health and the environment is continuously occurring. We say it is, and we believe we have the evidence needed to prove the contention.
If the courts, all the way to the Supreme Court prove unwilling to allow this question to be examined, the result will be worse than the Dred Scott decision, Santa Clara County v. Southern Pacific Railroad, Plessy v. Ferguson, Buckley v. Valeo, Diamond v. Chakrabarty, J.E.G. Ag Supply v. Pioneer Hi-Bred International, Citizens United v. the FEC, and Bush v. Gore all rolled together. This is asserted because the facts about the destruction to the public health and the environment are now available to those who are interested to investigate them.
Revealed by the courts will be either fear of the truth because of the embarrassment related to past failure or a dedicated commitment to falsehood in pursuit of corporate profit and campaign contributions. When the government and the courts are seen doing everything possible to prevent the truth from being exposed, the people can know democracy is dead. They will be able to see the government is no longer interested in serving the public need.
Monsanto’s transgenic contamination is not just changing the color of a house or even all the houses. Together with the chemicals employed with it, it is affecting the health of the people, destroying the natural health and fertility of the soil, and its damaging genetic impacts reach into the future in ways that cannot be definitively known when patent rights are used to block and manipulate U.S. research on the issues. As long as U. S. studies only last 90 days, they cannot discover enough to expose the needed truth, and that is part of the problem resulting when the government declines to perform regulatory responsibility on behalf of the people.
When studies on the important issues are only made in other nations where a higher level of integrity, public honor, honesty, morality, pursuit of truth, and humanity still exists, the United States is exposed for its failure on all these points. Worse, if better is not possible, the government, including the elected and appointed officials of all three branches will be exposed as unwilling to let anyone get a day in court if that might expose the years and decades of profligate government collaboration with corporate self-interest at high public cost. These costs are high in the present, and based on the research abroad, they are expected to be higher in the future.
The outcome will spread Monsanto’s transgenic paint across the moral character of the whole nation. It will also show corporate campaign contributions and lobbying are more powerful and important to government decision makers than the need to learn the truth about transgenic technology—and the threats it poses to the public health and the environment. It would be bad enough to deny the need to put the matter before a fully objective, open review in a court of law, but if the two decisions by the lower courts are representative of court attitudes everywhere and all the way to the Supreme Court, the United States is in bigger trouble than anyone realized.
The observed failures become crimes against humanity. If our evidence is accurate, they are far more than crimes against the rights of farmers and consumers. The truth needs to be collectively determined somewhere, and it would be best if the people of the United States took responsibility to see it done under their care. If that does not happen, the people of other nations could want to see the entire U.S. democratic system, and especially those chosen to lead it, tried and convicted for their years of willful negligence.
The so-called Doctrine of Substantial Equivalence they have relied on to defend their decisions never was an honest scientific standard. It was created by industry executives and politicians as a ruse, and then, at most, they got some collaborating scientists to rubber stamp it for them. The scientists at the FDA would not endorse it, and that is clearly known from discovery in a different lawsuit.
The FDA scientists understood and predicted all the issues that have since been determined by independent research mostly in other nations. The collaborative deregulatory business was done as if the United States was a corrupt dictatorship, except that it was worse than that. It made the routine, petty corruption, immorality, and intellectual dishonesty in some other nations look benign and virtually insignificant by comparison. The United States might be compared to a banana republic except that the comparison would be prejudicial against banana republics.
—Don Patterson, 83rd Co-Plaintiff
The Background Details and Political Climate of the Court Decisions
In a relatively short and cursory decision written twenty-four days after the January 31, 2012 oral arguments in her courtroom on an upper floor of the Daniel Patrick Moynihan Courthouse in lower Manhattan, Judge Naomi Buchwald virtually spanked us in black and white for bringing our lawsuit. She told us, in effect, we should not be concerned about the aggressive farm rape Monsanto is free to visit upon us, and we should be satisfied by the undefined, vague, and unenforceable promise not to sue farmers for patent infringement over “inadvertent,” “trace” contamination of organic, biodynamic, and other non-transgenic crops.
Against this directive, we believe the judge must not understand biological and agricultural reality. Worse, she must want to ignore it to help advance the cause of unbridled corporate profligacy.
Maybe we needed to do a better job of providing her with everything needed to be fully informed, but when judges are provided too much contextual material, it can become irksome and work against to objective of winning a judge’s favor. Some reasonable background understanding or capacity to understand needs to be assumed, but in the case of rural people up against corporate interests, such assumptions can be dangerous. Ignorance about the realities of farming is rife in urban places, and corporations have prominent friends in those same places.
The basics of the case were presented through both written and oral statements; yet, virtually no attention was paid by the judge to the undisputed, uncontroverted facts she was presented. Her decision shows she did not want to be confused by the facts, and in a culture as polarized between urban and rural, organic and chemical, corporate and individual, as the U.S. culture is, fixing misunderstandings and arrogant assertions of certainty is not easy.
The circumstance is as bad as it is between Democrats and Republicans, and a sensible, wise, and just reprieve is unlikely on either issue any time soon. The failure makes democracy look incompetent, even ridiculous and insane in its blind capacity to destroy itself along with its people and its essential philosophical seed corn.
Many people have assumed all farmers are politically the same in their views as the Farm Bureau, and that has been a source of alienation between rural and urban people. The famous political satirist Art Buchwald fell into this category, and it was not possible to disabuse him of his anti-farmer sentiments during the time when many economically threatened farmers were lobbying in Washington for three years from 1978 through 1980. Effort was made at that, but Buchwald could only remember when Congressmen like Howard Smith of Virginia, the notorious chairman of the House Rules Committee, and Senators like James Eastland of Mississippi and Harry Byrd, Sr. of Virginia had been entrenched in conservative positions by farmers and other rural voters.
By 1978, as a result of the civil rights laws a decade earlier, the balance of political power had shifted to the suburbs and cities and political abuse was now being imposed on farmers who were by then only a small, politically ignored minority. They were ignored nationally and even in many prominent agricultural states where they were heavily outnumbered by suburban and urban constituencies. Maybe Buchwald was happy to see farmers and other rural people given their comeuppance. Whatever the reason, he was not interested in the economic survival issues farmers faced, and many others in the Washington establishment agreed with him. The Washington Post was among them editorially. They were worse than the New York Times, for example.
In the political environment of the late 20th century, agribusiness was politically allied with suburban and urban voters, and together they used policy to keep food prices low. This is the policy context Monsanto has been able to exploit to help farmers survive against the incessant policy-driven cost-price squeeze. This is also the policy framework used to reduce farmers from about 25% of the U.S. population before World War II to 2% by 1980. The goal was capital-intensive mechanization and industrialization of agriculture to increase the non-farm labor force.
In this circumstance, anything that could help farmers lower production costs was good as was anything able to replace labor with technology. Short-term expediencies pursued at high, long-term public cost have not mattered. Virtually all traditional horticultural skill was taken out of farming through the use of chemicals and other technology. Similarly, pharmaceuticals removed prudent nutritional wisdom from the process of staying healthy, and in seed technology, “yield” became the Holy Grail pursued at the expense of nutritional quality, particularly in the major commodity crops. Policy pressure favored bigger farms and industrialization of food production, especially in the management of meat production.
This has been the cultural climate Monsanto has helped empower, enable, and encourage, so they could profit from it, but the sacrifices resulting from the pursued agricultural practices and the resulting food quality for the public health and the environmental are only now beginning to be tallied twenty years after Vice President Dan Quayle was the Bush administration mouthpiece overruling FDA scientists and arbitrarily declaring transgenic food “safe.” Few people looked behind him to see Monsanto’s former attorney, Michael Taylor, as Deputy Director of the Food and Drug Administration, in the role of ventriloquist on whose lap the Vice President obligingly sat. Behind them both, Monsanto was the wizard behind the curtain.
Among the now observed damage two decades later, soil culture has been destroyed to the point it cannot sustain the growth of healthful food with all the core minerals and trace minerals needed to sustain life, and the soil also has lost much of its essential ability to sequester carbon dioxide. Soil is the second most important carbon sink, behind the oceans, and Monsanto’s herbicide, Roundup (with Glyphosate as the active ingredient) is a powerful chelator that binds to soil minerals making them no longer bio-available. Roundup does not kill weeds; it weakens their immune defenses, so soil pathogens can then overwhelm them. Soil ecology has suffered massively in the process, and the restoration is likely to need a quarter century of effort.
Ignoring the modern farming reality, many urban people only know that the most strongly Republican states are the farming states of the South and Midwest, and because of that, they assume the farmers in these states must be Republican, usually Tea Party Republicans. In contrast, organic and other non-transgenic farmers may be Democrats or independently-minded Republicans who are not in lockstep with Monsanto and other corporate interests often served more by Republicans.
The trouble is: organic farmers only total about 14,500 or 15,000. The vast majority of large farmers are growing Monsanto’s crops, and they feel they must do that to survive economically. The company says its customer base in the U.S. is about 250,000, and these farmers do tend to be politically conservative Farm Bureau members.
In 9 out 10 Republican Congressional districts, only challenges from the right are even possible, and that affects the way the corporatization of the political system is viewed by the Congress and the political establishment. Attitudes toward food are affected ideologically as much as are attitudes toward other cultural issues such as healthcare, gay marriage, abortion, and a pathway to citizenship for undocumented immigrants, and Republicans in the Congress and the White House have used the farm program to funnel money one-sidedly and as much as possible, without making it too outrageously blatant, to their favored farming constituencies.
Relatedly, healthcare should not be a cultural issue governed by ideology, but if it were not, the House of Representatives would not hold symbolic votes almost weekly to try to overturn Obamacare, over 40 of them now with the next one awaited at the time of this writing. The House might as well adjourn for a period of time to play shuffleboard, but it must gratify most House Republicans and their home constituencies to hold these meaningless votes. It must be a feel-good way to stand up symbolically against a political reality they fear but have not yet been able to change.
The Republican majority in the Congress could choose to address real health issues needing attention, but they do not do that, and they seem unlikely to do it. That would take real work and real knowledge, but it would prevent them from doing the incessant fund-raising now required of all members of the Congress if they want to be reelected. Speaker Boehner has said the Congress should be measured more by the laws it repeals than those they pass, but they have been too busy voting incessantly to try to repeal Obamacare to focus on repealing any others.
The only thing left is the application of an ideological litmus test to the allocation of funds. Targeted for denial of funding, as the leading priority in August 2013 is Obamacare. As a result of the way healthcare is managed, both before and after Obamacare, the causes of health afflictions are not sought, and understanding of them is not wanted. Symptoms are treated and causes are made irrelevant. As long as the profit flow continues, the causes of the nation’s health troubles have been viewed as virtually irrelevant by both Republicans and Democrats. The main interest is protection of the money flow into the corporate treasuries and out of them as campaign contributions. This is the American way, whether or not democracy is discredited as it has been.
Monsanto is a prominent corporate player in this profit-focused, damage ignoring system, money generating system, and as long as everyone is profiting, the healthcare companies and the agribusiness companies are allied with each other in a circle of mutual gratification hand-in-hand with government officials also benefiting through campaign contributions from the well-oiled working of the pro-corporate political system.
Partisan gridlock supports this pro-corporate arrangement. As long as the Congress is dysfunctional, corporations are free do as they please, and almost nothing may happen unless the corporate lobbyists endorse it and even write the legislation as they want it to appear. Major pieces of legislation have directly from the hands of the lobbyists, and Medicare Part D is an example.
All the political actors collaborate in milking the people in their role as taxpayers and as workers, and some of those milked are farmers who have not understood what has been happening at the expense of themselves, their livestock, and the soil they depend upon for their livelihood. The consuming public also depends on this same soil for their nutrition, but they are not closely enough connected to agriculture to know what has been happening or how it affects them. Many are dependent on eating whatever is served up for them the same as if they were livestock.
In this exploitive environment, some food is not even grown in soil anymore; it is grown in a sterile medium hydroponically and fed just enough mineral nutrient to resemble food but not enough to give it everything it should get if it were grown in soil. Meanwhile, few remember how food formerly tasted, and they do not know what is required to give it flavor. Instead, salt and sugar is put on it to provide an alternative kind of flavor.
Perhaps congressional brains (and the other political and judicial brains as well as many other human brains) have been impaired for the lack of needed nutrition, including trace minerals and vitamins. For example, chromium is important in the management of dietary sugars to overcome obesity and prevent Diabetes, cobalt relates to mental function and the regulation of the nervous system because it is basic to Vitamin B12, the creation of red blood cells, the prevention of anemia and preventing excesses of homocysteine. Not much is needed, but some is essential. Manganese is basic to immune system health, metabolism, and bone health.
Essential nutrients are well-known to be missing from the food people are commonly fed, and that is the reason many people are found to be lacking basic nutrition. People are often deficient in magnesium and Vitamin D, for example, but trace minerals are even more deficient in the diet, and that is partly because use of Roundup (Glyphosate) has bound them up and made them nutritionally unavailable to plants, animals, and people. For this reason, transgenic crops have been nutrient deprived, and that has meant added minerals have been required to keep the plants disease free and alive, but this supplementation does not meant that they get everything they need to be fully healthy and nutritious.
The only nutrient that has mattered in the U.S. system is money. Reliance on that delivers the policy results observable by those who want to pay attention: self-impairing transgenic food (including meat raised on transgenic grain). A UCLA study was released in June 2013 showing how the human brain is affected by the state of the intestinal flora, and the biotic state of the intestinal bacteria is affected by the transgenes allowed to infect it when transgenic food is eaten. This impact could be comparable to the impact of lead pipes on the people of ancient Rome, but more investigation is needed to obtain all the needed information it would be valuable to know for the benefit of everyone’s health.
Prudent confirmation of the results requires multiple additional studies, and relatedly, the impacts of Glyphosate and other chemicals also have impact on intestinal flora and thus also on brain function. Disease-related impacts have been studied mostly in other nations, but the impacts on IQ and mental processes still need to be.
The UCLA study did not examine these cognitive aspects of brain function so much as it looked at other broad mental pathologies such as depression and anxiety, but if forms of mental illness including autism, Parkinsonism, Alzheimers, and other dementia can be affected by the state of the intestinal flora and the failure to get important dietary nutrients in food, it would not be a stretch to think intelligence level and basic mental performance would also be affected.
Within the past year, a study at Harvard showed the impact of water fluoridation on IQ, and that study, like many others, should have been made many years ago just as studies investigating transgenic crops and their associated chemicals should have been made years ago before the products were released on the market for widespread cultivation and consumption.
Those empowered by the way the system works do not want any information or investigation that might undermine the continued profit flow and the related flow of political contributions. The failure to have required independent, objective studies is a matter of governmental negligence and worse because a finding released in the wake of the Harvard study reported the Soviet Union had first put fluoride in drinking water as a way to make its citizens docile. That is not a trait that should be desired in a real democracy, but maybe it has been now in the nominal U.S. democracy.
Whether or not brain function or chemically-inflicted docility has been a factor in the thinking exhibited on the issues we have raised, we strongly disagreed with Judge Buchwald's prejudicial perspective and attitudes (as exhibited in her decision) as much as we disagreed with the conclusion she reached. We were insulted by the flippant, imperious, disdainful way she addressed the earnestness of our concerns, and if it would work, we would favor peer review of judicial decisions as a way to prevent similar breaches of justice and respect for plaintiffs in the future.
The appeal brief filed by our attorneys at the Public Patent Foundation in July 2012 with the Appeals Court of the Federal Circuit in Washington, DC highlighted reversible errors we believe Judge Buchwald made, and we expected the Appeals Court judges to be alert to those issues when they undertook their de novo review of the arguments in the case. This is the court assigned to hear all patent-related appeals, so they hear hundreds of them every year. The judges on the court have much greater background knowledge on patent issues than Federal District Court judges, but the Appeals Court decision issued on June 10, 2013 did not breathe a word about these legal errors.
Instead, the Appeals Court decision went off on its own tangent as if it were an errant rocket on the Fourth of July shot into a neighboring haystack to set it on fire. They pursued logic and attitudes completely different from the logic and attitudes of Judge Buchwald. Even though the three judges of the Appeals Court rejected the logic of the Buchwald decision, they did not do so confrontationally as Judge Buchwald had done. They repudiated her thinking without changing her conclusion and without doing greatly better in imposing their own prescription on the intractable biological and legal realities confronting farmers. They seemed to be more legally clever while being less imperious, directive, punitive, and irritable.
The threatened farmers involved in our lawsuit choose, often for ethical reasons, to avoid Monsanto’s transgenic technology. Yet, for all it is possible to know from either court decision, the issues we are raising might as well be whimsical. In both, the core issues are simply sidestepped along with the precedents pertinent to our constitutional right to a day in court. In the end, the Appeals Court decision appears to be no more than a clever diversionary tactic, but that is better than the abusive, condescending, and tutorial treatment delivered by Judge Buchwald.
The Differences Between the Ways Different Courts Think and the Needed Response
If we lived in Germany, we would have no chance to appeal beyond the specialized patent-focused Appeals Court. There, patent matters are considered too arcane to mostly ever get the attention of the higher court, but we are grateful for the opportunity to appeal to the Supreme Court in the United States. Working together as they do to magnify, hopefully, their collective wisdom, the nine Justices of the Supreme Court have sometimes shown a breadth of perspective not found from the often pro-corporate, pro-patent judges of the Appeals Court of the Federal Circuit. Unlike the judges of the patent court in Germany, where technical expertise is required in addition to legal expertise, appointees to the U.S. Federal Circuit do not have the same requirement. Whereas the Supreme Court has sometimes seen the forest on patent matters, the judges on the Appeals Court of the Federal Circuit often seem constrained by a view of only the trees. While the justices of the Supreme Court view the patent-related forest from above like a flock of crows, the judges of the Federal Circuit seem to see the trees from among the branches with the gray eminence of squirrels. That has been seen recently as well as in the past, but it may be better than leaving patent matters with Federal District judges. They may have as much perspective on patent issues as misplaced mice scurrying into whatever expedient legal crevice they can find close to the forest floor.
Better peer review and oversight over decisions before they are released might improve on the observed outcomes at the level of the lower courts, but that cannot be known until it would be tried. If the Supreme Court justices gain benefit from the collegiality of their decision-making processes, other courts might be able to benefit similarly, and if they did, the resulting precedents might be neither rude, trivializing, nor nonsensical, but more process time would be needed to get there.
Given the complex issues needing to be dealt with in the modern era, the courts need more technical support than they are getting, but when a request was made for technical assistance, the Congress, in its limited wisdom, denied the budget for it. No doubt, the cost of this economy was not understood, and the members of the Congress would be hard pressed to find the time to understand it. With half their time going into fund-raising for their next election campaign, they would hardly have time to do more than they do already.
All the various judicial animals and birds may look toward those who gratify them and to the political culture in which they live for guidance about the way they should think, and that could be the reason corporations are the favored source of this guidance. As a result, the wisdom of Solomon has been hard to find. Maybe Solomon had more nutritious food to eat and felt less dependent on politically organized corporations for direction, or maybe he would have possessed a little more curiosity, insight, and investigative ambition to delve into the arcane impacts of patent law in all the required detail. Of course, he would have needed to wait until 1793 for Thomas Jefferson to write the U.S. Patent Law.
A Judiciary that produces myopic and insufficient decisions from the Federal District Court without the collegial review needed to create and pursue unified precedent and an almost equally limited, even nonsensical, and highly pro-corporate, pro-patent decision from the Appeals Court, leaves only the Supreme Court with the capacity for broader and deeper wisdom. This is not a system with broad capacity to inspire litigant confidence about the prospects for justice. In a nutshell, this has been the story of our lawsuit, so far.
Greater internal systemic oversight is needed to help create admirable, workable, and sensible precedent. Improvement might result if decisions were sent for review and comment from a group of law students before they would be issued. Clearly, the clerks assisting judges with their work are not enough. If they were sufficient, better would result from their participation.
Empathy with the workload of judges is easy, and no doubt, because of that work burden, it could be understandable if they would become disconnected from the difficult complexities related to the issues they must adjudicate. Perhaps, judges and courts now need to have technical specialties in the United States the same as they do in Germany. A court with special knowledge about agriculture could be valuable.
Better is needed from somewhere, especially if the decisions in our lawsuit give an indication of the level of judicial thinking to be found in many other technically challenging decisions. Judges are made to look ridiculous when they are obligated to rule on matters where they lack core knowledge.
When Mr. Jefferson included the study of law in his university, his primary goal was not the creation of professional lawyers whose lives would be spent focusing on arcane legal details. He wanted to empower citizens with increased understanding of the law and perhaps the way laws are crafted.
The best laws are written by those who have the best knowledge about the subject being addressed, and citizens can only escape abuse if they have the knowledge and experience needed to study the work legislators have done. The fulfillment of the Jeffersonian legal idea might have worked out beneficially for improved citizenship as well as the way courts do their job, but instead the professionalization of legal education has tended to align the legal profession with the interests of the elites and their corporations because corporations have the money to pay lawyers and an increasing number of citizens do not.
Like bank robbers, much of the U.S. legal talent focuses most diligently on the places where the money is. Major law firms are not built by serving the indigent or even by writing wills and trusts for average citizens. Most legal work is generated by corporations and incorporated institutions, and many people may live their whole lives without needing more than a minimal personal relationship with a lawyer. This helps to make the work of courts arcane and confusing for most citizens.
As has been noted before now by others, the establishment of law in both legislatures and courts is no more appealing to watch than the making of sausage, but Jefferson understood the protection of democracy lay in the ability of citizens to understand and participate in the work of government, including the establishment and refinement of law. Yet, despite Jefferson’s clarity, he died too soon for his vision to be robustly fulfilled at the university he founded. Others soon came in and changed the concept. As a result, Jefferson’s ideal was subverted in pursuit of the Federalist conception of law and legal training, and that is the one now operational—especially from the judges so far addressing the claims asserted by our lawsuit. It favors the advancement of the elite.
Under this legal model, judges claim directive, even imperious and manipulative, plutocratic, and oligarchic power, establishing themselves as a separate class with authority over the people more than they aspire to provide service to them. Many judges do not see themselves as servants of the people so much as they see themselves in the same elevated cohort as leading corporate executives, almost as if their law degree empowers them to be a kind of incorporated individual with the empowerment to think and impose their authority like potentates. Under this ideal, the law becomes a fiefdom and a tool of control, more a weapon of domination than a means of societal facilitation. The co-plaintiffs in our lawsuit are now the victims of the attitudes accompanying this kind of judicial self-perception.
We believe Judge Buchwald failed to consider important precedents pertinent to our right to have a day in court as much as she failed to examine the uncontroverted facts presented in our filed complaint, and from that an abortion of justice resulted. Instead, she chose to accept—without the benefit of supporting evidence—misleading contentions stated by Monsanto’s lead attorney at oral argument. During the oral arguments, she said she could read the case law, and from that comment she made clear she had not done that reading yet, though she would have done that reading if she had wanted to be respectfully prepared for the presentation of the oral arguments.
In the end, Judge Buchwald’s dismissal decision did not deliver confidence all the needed reading had ever ultimately been done. Like the Bush-Cheney decision process before the invasion of Iraq in March 2003, Judge Buchwald seemed to find the conclusion she wanted to reach and then sought the case law best focused to support it, whether or not the thread of governing thought was salient or appropriate.
On the perceived merits of our asserted arguments, we hoped for a reversal by the Appeals Court, and that hope was strengthened after hearing the oral arguments on January 10, 2013. The judges on that day showed they were better prepared, informed, and thoughtful on the issues than Judge Buchwald was when she held oral arguments in New York City on January 31, 2012.
Where Judge Buchwald seemed to have hardly prepared herself at all for the oral arguments, apart from reading the complaint, the judges of the Appeals Court instantly showed a better command of the specific issues at stake. Given the ultimate outcome in the language of their decision, their command of the issues may not have been sufficient to provide all the necessary insight into the issues, but it was better than the level of comprehension found in Judge Buchwald’s federal district courtroom.
Judge Buchwald said in court she routinely grants all requests for oral arguments, but they cannot have relevant meaning or be a responsible and admirable stance in the public interest unless the judge has come to the event prepared to use the occasion effectively, thoroughly, thoughtfully, and honorably. If the granting of the request is merely perfunctory, like an indulgence, it can hardly be respectful, facilitatory, or respected. Justifiably, gratitude for the opportunity of the occasion should be truncated.
The observed Appeals Court familiarity with the issues being raised by our lawsuit together with the judges’ willingness to challenge at oral argument the assertions made by Judge Buchwald—as well as those made by Monsanto’s attorney in her courtroom—caused us to be hopeful about the prospective outcome of the appeal. Readiness to pursue legal principles Judge Buchwald did not pursue—or seem to even think about—also led us to be hopeful about the decision the Appeals Court judges would issue. Even the five months it took to issue their decision gave us hope a careful and thorough decision was being written, but that hope was badly misplaced.
If the Appeals Court was going to affirm the lower court, we believed they were likely to do that quickly—within no more than weeks of the oral argument, but when the three-judge panel issued their decision on June 10, 2013, it affirmed the lower court decision even if the decision departed entirely from Judge Buchwald’s logic and did not impugn us as Judge Buchwald had done. The Appeals Court judges did not even mention anything Judge Buchwald said. Their decision was de novo as much as their review of the arguments. That established a major difference of opinion over the correct grounds for a dismissal. Both views could not possibly be reasonable even if they would both be equally insufficient.
The appeals panel found our case did not need to go forward because Monsanto’s attorneys had made statements in court effectively granting a Binding Covenant not to sue the plaintiffs or similar others for “inadvertent,” “trace” contamination. The court set a definition of “trace” as Monsanto had previously refused to do, but in determining this “trace” amount of contamination at any amount less than one percent, they set the level much too low to meet the practical requirements of working farmers. They turned the raised issues into a joke as if farmer needs should not be taken seriously and do not matter.
While the appellate judges did not impugn our group of co-plaintiffs through their language and attitude, their severely and pathetically limited decision did that nonetheless. In fact, the Appeals Court decision mocks the real need, issuing a cruel, discriminatory, and condemnatory mockery out of the anguishing and costly circumstances farmers face. As a farmer, Jefferson would have been as embarrassed as we are and all citizens should be—if they would understand enough about he growing of food to be able to feel it.
The appellate judges’ decision states a real though maybe blindly unintentional defamation, but it was not as big as the one was issued by Judge Buchwald with the clear intent of sending us back under the porch with our tails between our legs and our hides whipped. The Appeals Court decision was supported through the use of the estoppel principle to establish the Binding Covenant; this principle prevents the assertion of a contention in the future if it contradicts one already stated in the past. Judge Buchwald could have made use of the same principle if she had wanted to or had thought of the idea, so either she did not want to, or she did not perceive the issue the judges of the Appeals Court asserted.
Once the appellate judges found Monsanto’s attorneys had committed themselves to a Binding Covenant through their courtroom statements, all that remained was the need to define it. To do that, a number was picked out of the air or as if it had been shot at Craps through the roll of a die. The result was a one-eyed snake delivering two-eyed poison. The definition may have been a bit better in principle than the non-definition offered formerly by Monsanto but only by the smallest possible whole-number increment. It was 99% distant from fulfillment of the need. The result was like faltering face down at the first yard of a 100-yard dash.
The court’s decision was, nonetheless, interesting because our attorney, Daniel Ravicher of the Public Patent Foundation, had written a letter to Monsanto’s attorneys in April 2011 immediately after our lawsuit was filed telling them the lawsuit could be made to go away if they would convert their vague, undefined, and unenforceable Web site promise not to sue over “trace” amounts of “inadvertent” contamination into a binding, enforceable covenant meeting the needs of farmers growing non-transgenic crops.
Ravicher was willing to negotiate the terms of an acceptable covenant, but the expected language could have imposed neither a ceiling nor a threshold. In an acceptable covenant, no case of transgenic contamination at any level would have been able to trigger a patent infringement lawsuit. Anything triggering such a lawsuit would not have been sufficient; it would have been impossible to agree to.
An insufficient covenant would not have overcome the need for a Declaratory Judgment from the court. That was needed to provide full protection against patent infringement lawsuits, and it was needed in the absence of a Binding Covenant able to deliver the same result. Partial achievement of the objective could not possibly have worked.
If there is truly no intention on the part of Monsanto to sue farmers who have no interest or intention to make use of Monsanto’s technology, as they have stated, then the Binding Covenant should have no limit on the amount of contamination covered. If that principle is not accepted and affirmed by the court, as it should have been if the scope of the estoppel had been correctly understood, then there would need to be a clear reason for delivering the result they did. The only possible reason would be the need to use the limitation to enable the perpetration of a threat, and by setting the limit at one percent, the Appeals Court panel gave its permission to assert such threats to almost the maximum extent possible (99%).
Important in this analysis is a clear understanding of the way the words “trace” and “inadvertent” were used. When they are used to imply the applicability of both together, suggesting that any “inadvertent” contamination would also be a “trace” amount of contamination, the contention flies in the face of the way nature works. Any “trace” amount of contamination will soon become more than a trace amount. That is the essential reality.
For example, suppose a bag of contaminated seed is purchased and sown. When it grows, the amount of contamination will increase through cross-pollination. This is inevitable and can only be prevented if the planted seed is entirely uncontaminated. This is the reason why co-existence between transgenic and non-transgenic crops is ultimately impossible. Everything will ultimately become contaminated, though some crops will become contaminated faster than others.
Expecting inadvertent contamination to remain a trace amount in quantity is irrational and contrary to biological reality. When the terms are used that way, they state a threat, not a meaningful promise. Their use in combination would not be reasonable under the realities farmers face. On the other hand, when the words would be used to imply “trace” or “inadvertent” contamination, and that would mean any “inadvertent” contamination would not be limited to a “trace” amount. The amount of contamination will depend on how soon it is found, how it occurred, and how widely it has been able to spread.
Monsanto’s attorneys refused in 2011 to even discuss the idea of a Binding Covenant under any terms, and that showed they intended their promise to be both unenforceable and undefined. Clearly, they wanted to leave it as vague as possible, because that was the only way it had threatening value aimed at convincing farmers to accept and participate in their program. Farmers give in and do that as their way of escaping the possibility of patent infringement threat.
Despite this reality, Judge Buchwald told us in her decision to feel comforted by the empty Monsanto promise. That was like delivering an empty pizza box and expecting it to both fulfill the purchase contract satisfy the waiting hunger. Either Judge Buchwald did not understand what has been going on, or she wanted to support the perpetration of the devious and deceitful intention. Monsanto said the loose existing language was sufficient, and Judge Buchwald agreed with them. Judge Buchwald’s husband might like to know this, because it means he can given her an empty box as a Christmas present without her knowing the difference. The issue is no more complex than that. She would be as happy with an empty box as she would be by one with something in it.
Anyone making the assertion Judge Buchwald made would need to be either a fool or a charlatan, and anyone accepting her advisory directive at face value would need to be an idiot. No other options seem available without straining credulity. Perhaps, Judge Buchwald made use of an imperious attitude precisely because she knew her argument could not hold water on the merits, so she applied imperious and irritable Body English to support both. The issue is the same as it would be in a domestic argument where one person starts to shout as their way to win on a point possessing no underlying logic.
Perhaps Monsanto anticipated a court decision on dismissal much like the one Judge Buchwald gave them. Maybe they had the experience to know more than we did about the disposition, attitude, and reasoning of this particular judge. Without perceiving any evidence suggesting “a fix was in,” the next best thing to that was written in the Judge’s decision. Even a corrupted judge would have been unlikely to have written a more pro-Monsanto decision than Judge Buchwald wrote. A corrupt judge would not have wanted to be as transparently flagrant for fear of being called to account directly as a result of the employed language. For that reason, Judge Buchwald would likely only be biased in favor of Monsanto and be strugglinig the best she could to find a way to justify the objective her point of view impelled.
In contrast, the Appeals Court judges did what Monsanto’s attorneys had refused to do, but under a definition of “trace” amount that was too minimal to be useful or meaningful in the real world—without addressing the importance of the word “inadvertent” as a separate part of the pertinent reality. In being so abjectly minimal, the decision had to be manipulative in the hope we would be dumb enough to accept it as an adequate court decision. Maybe the court intent was to see if the plaintiffs would be that dumb.
Meanwhile, the evasion of the word “inadvertent” escapes the need to address another issue. For organic and other non-transgenic farmers, all contamination would be inadvertent. Contamination represents a cost for them, but once a crop of theirs becomes contaminated, they need to find a way to get rid of it. If they know the crop is contaminated, it cannot be sold as organic, and the only way it can be sold as non-transgenic is by mixing it with a fully non-transgenic crop so that the amount of contamination can be reduced to less than .9% because that is the level the market for non-transgenic, non-organic crops will tolerate. The mixing means finding a crop to be mixed with.
All this work needs to done clandestinely, because if Monsanto finds out about the contaminated crop, they can claim ownership of it and sue for patent infringement claiming treble damages, because it contains their transgenes without the farmer having paid a royalty. Farmers caught in this jam do not want even neighbors to know what has happened, because neighbors can collect a reward for telling Monsanto. They have a hotline number for this purpose, and they rely on this way of learning what is going on. This circumstance has turned the rural community in the United States into something like a police state where mutual relationships and trust are destroyed as the result of Monsanto’s power.
Collaborators are co-opted through the rewards. Commonly, those who cooperate with them are given a nice leather jacket, but it has the Monsanto logo on it. That turns the people wearing it into Monsanto billboads. They also use their pre-trial settlement income to provide scholarships for needy rural students, and that has the impact of waving Monsanto’s big stick at all farmers. It is a demonstration of Monsanto’s financial power.
The elite have been skillful over the years at giving something relatively meaningless as a way to avoid delivering something more costly. For example, sending birthday cards or giving other small kndness to employees may make them less likely to demand higher wages. Maybe the appellate judges thought they would buy us off with similar ease and anticipatde failure on our part to perceive the game. Maybe they saw our request for a Binding Covenant and figured out a way to give us one, thinking we would to be happy receiving what had been originally asked for, but everything depends on the terms of the covenant. The mere fact that one is provided is not enough to satisfy. Beyond that is the insult of having been played for fools by the court.
We were legitimately grateful the Appeals Court did not reinforce the imperious condescension of Judge Buchwald, but we still would have been fools to have accepted the slick decision from the court as an acceptable resolution of the issues at stake. Worse, acceptance of the court’s decision would have left the consuming public holding the bag on the health and environmental destruction, and the whole point is to fix the problem, so we are not impaired in our ability to serve the public with the moral integrity an admirable culture requires. Only in that way can the needs of the nation be met, and anything short of that collaborates with the devious amorality the decisions by both lower courts has propagated.
If a court decision is an offer in a bargaining process, the opening offer by the Appeals Court in this case was an insult—like tipping a waiter a penny when the tip should have been a dollar. If we were to take this as a statement by the court about the value assigned to our issues and our efforts to deliver honest value in delivered food, we would want to move to a different nation where greater appreciation of legitimate value would be manifest. In this sense, the court’s decision was like spitting in the soup before serving it, but in the United States, we already know the political elites take farmers for granted and routinely abuse them in service to elite advantage. Policy has worked that way for decades. Jefferson saw it himself and commented on it. Andrew Mellon continued the abuse when he was Secretary of the Treasury. It was his way of driving farmers off the land and into factory jobs.
Farmers are given so-called subsidies, not because they are valued but because they are not valued enough to be given a fair price in the marketplace. The “subsidies” make up for the management of prices, so major commodities will remain cheap for consumers and agribusiness. This is the reality, despite all those who complain about the “subsidies” to farmers and demand their termination. Neither the critics nor the public has generally understood until recently the public health costs resulting from the way agriculture policy has been managed and from the nutritional distortions or corruptions that have been directly caused by policy.
To their own ultimate disadvantage, the anti-subsidy advocates have just about succeeded at their objective, but that does not mean healthful and safe food will be the result. Monsanto’s system of agriculture is the result, and it is worse than spitting in the soup before serving it. Spitting in the soup would be benign in comparison to the health and environmental impacts Monsanto delivers. This needs to be illuminated as clearly as possible and in every way possible. That is what our lawsuit is about.
Subsidies are a manipulative weapon, part of the project designed to prevent farmers from getting a fair market price for their products, but it is also used as a political tool to benefit favored constituencies, and curry favor with them. A culture that feels free to manipulate farmers in one area will feel no moral constraint about manipulating them and many others as part of playing the zero-sum game that transfers wealth from farmers and others into favored sectors of the economy in a variety of ways. Wealth transfer and exploitation has been an objective of farm policy for most of a century, and even the tool created to stop that have been subverted.
The cost-price squeeze that has pushed farmers off the farm at an average rate of 1000 per week for 77 years has enabled a massive transfer of wealth from the poor to the wealthy. Even crop insurance is a wealth transfer scam benefiting insurance companies at the expense of the taxpayers who subsidize it. Farmers benefit, but they also must pay premiums, and they may pay more in premiums than they ever get in benefits even with the taxpayer subsidy of the crop insurance program. From the total perspective of society the policy created assets and the liabilities need to be assessed to see if there is a profit or loss.
This game is part of the new corporate feudalism managed adeptly by Monsanto while treating farmers as modern serfs to be manipulated, abused, and taken advantage of because they have an immediate need to keep their production costs as low as possible. To stay in business now, commodity farmers mostly need to use the methods most other farmers are using, and if they do not, they do not keep up with the price pressures administered under the U.S. national farm program. Only a relative few (less than one percent of all farms are organic, for example) have been able so far to create or maintain a market for non-transgenic products. The market is growing but not fast enough to absorb a large number of farmers quickly.
Meanwhile, policy has encouraged the wrong things to happen for political reasons. Policy has caused meat, eggs, and dairy foods to be raised in ways that are almost optimally unhealthful as if that should be the goal. Farm policy has promoted the destruction of the ability of the soil to sequester carbon, and it has caused the release of the carbon dioxide formerly sequestered effectively. These things happen because the policy makers setting policy know almost nothing about what they are doing apart from from the most immediate, pro-corporate political considerations.
The right to manage farmers as they are managed under the farm program and the dominant Monsanto farming system is taken for granted by the controlling elites, and everyone should have been able to understand the assumed right of the elites to assert control over farmers that since the Daniel Shays Rebellion in 1786-87 and the subsequent Whiskey Rebellions in Pennsylvania and elsewhere. Back then, a cannon was rolled out and fired at the rebellious Massachusetts farmers, but since then, the methods have been more clever and devious.
Many farmers do not understand how the farm program works to accomplish its agenda against them, and for that reason many have wanted to end the program even when that would cause a worse outcome. Many have been forced out of business without understanding the way it was accomplished, and most have been docile in their acceptance of the result. The New Deal Farm Program, created to maintain balance between the farming sector and the other sectors of the economy, has been subverted and manipulated to serve the interests of agribusiness instead of the millions of victimized farmers.
Because of their small numbers and limited political leverage even in many major farming states, farmers can no longer prevent their victimization or even fight it. For the same reason, we have little more than common sense to fight against the similarly and supportively abusive behavior of judges. As a result, the situation has become worse from the point of view of health and nutritious food. This is the direct result of government-supported corporate domination of agriculture with Monsanto in the leading role.
Nearly a century after the Shays Rebellion and other similar local rebellions against elite power, the Farmers Congress (the post-Civil War predecessor to the Farmers Alliance of the late nineteenth century) memorialized this understanding when they demanded redress of farmer grievances, pointing to the large number of lawyers in the government and demanding the creation of a Department of Agriculture to represent farmer interests in the government. They should have anticipated that this agency would soon be manipulated against their interests the same as others, but they did not have that clairvoyance to foresee that. In politics, lessons are learned by citizens over time, the hard way.
Lessons have been learned similarly by organic and other farmers of non-transgenic crops over years since the National Organic Program (NOP) was created and since Monsanto has been allowed to take over domination of chemically-dependent agriculture. Efforts to erode the integrity of the NOP have become virtually constant, and it was hard enough to try to write full integrity into the program to start with. The trouble was, many diverse organic programs had started up in many places, and a unified national program was needed to end the confusion. Now, the courts are getting the chance to have their destructive role in undermining non-transgenic food integrity and promoting corrupting corporate power over it.
As one practical matter resulting from the decision of the Appeals Court of the Federal Circuit in our lawsuit, contamination of one percent or less may be too small to even find, especially when the governing provisions of the National Organic Program are more liberal about transgenic contamination than they are about pesticide contamination. That has reflected corporate power over the NOP from the start; the provisions of the program have been and continue to be manipulative against the interests of farmers to protect the interests of processors.
The NOP is a “process-based” standard that does not require transgenic contamination to be tested for or known about. Even though the standard has zero tolerance about transgenic contamination if farmers know about it, they are not required to find out about it, no matter what the level of contamination may be. No “action level” exists for transgenic contamination, even though farmers are required to monitor the level of pesticide contamination and take their crops off the market if the allowable threshold is exceeded. For transgenic contamination, best efforts suffice without any legal requirement to know or learn about whatever contamination may exist.
This is like telling speeders and reckless drivers, they are free do as they like as long as they do not know the law. It makes ignorance a valid defense, which the opposite of the way the law works in any other area. An incentive is provided for farmers to remain ignorant about the level of contamination in their crops, and some may take advantage of that liberality. The only force overcoming this incentive is the desire of the farmers to make sure the food they produce lives up to the standards they expect of themselves.
The liberal provision on transgenic contamination in the NOP might have been written under the tacit assumption among some that transgenic contamination was not harmful, but mostly it was written because some major companies in the organic industry are subsidiaries of larger food companies selling products with transgenic content. They did not want the boat rocked on the issue of transgenic food because that could have impacted the market for other product lines offered by the parent company.
Both Judge Buchwald and Judges Dyk, Bryson, and Moore have acted to protect the same interests with non-transgenic food integrity thrown out the window like a slop bucket onto the heads of passing consumers. They have acted as if the honorable integrity of organic and non-transgenic food should not matter if it conflicts with Monsanto’s corporate agenda and the money it generates for campaign funding of political candidates of both parties, particularly the passively subservient incumbents.
The tiny amount of contamination defined by the Appeals Court under their established Binding Covenant only addresses one percent of our asserted need for a Declaratory Judgment from the court, but now that the Binding Covenant exists even if it is only at one percent, it provides an incentive to find contamination at that level, and that incentive did not exist before. Because contamination at that level can enable a damage claim without fear of a countersuit for patent infringement, it becomes worth the effort to discover it, if the amount of the damage is substantial enough to make a claim about it.
This new incentive can help overcome the shortcomings with the National Organic Program and its failure to require the discovery of transgenic contamination. It can help overcome the existing incentive not to find any contamination. That is especially important now that more people are concerned about transgenic contamination than are concerned about pesticide contamination. The new incentive helps, also, to overcome the challenge of finding such a small amount of contamination. It is now better to find it when it is less than one percent than it is to wait until it is more than that. This could help to protect the integrity of the organic and and non-transgenic food in ways the NOP has not done.
Nonetheless, the provided definition of “trace” is so minimal, it impugns the need for court protection almost as much as Judge Buchwald did, and it tacitly impugns us as virtual nit-wits if we would be willing to accept this definition as an adequate outcome in response to our complaint. Even if it does open the door for damage suits that were formerly blocked by the “strict-liability” principle in patent law, the trick will be in finding the contamination before it grows beyond one percent. That may not be easy, because it is not like finding a small taste of salt or sugar in a glass of water. The salt or the sugar spread evenly throughout the water, but transgenic contamination of a crop does not work that way.
Now, we need to find a way to do better in pursuit of a full Declaratory Judgment from the court, and that will mean petitioning the Supreme Court to review the Appeals Court decision. The Appeals Court has opened the door just enough to establish a necessary opening principle against the power of “strict liability,” but not enough to do anything of much value. Its like giving a starving dog a teaspoonful of meat, enough to get him salivating but not enough to satisfy his need for food. As a result, the giver of the small amount of meat might be the one who gets eaten if the dog is big enough, powerful enough, and mad enough to take revenge against the person who taunted him with such a tiny taste of food.
In the face of the now established Supreme Court pro-corporate attitudes and realities, the probability of Supreme Court review is not high even if the two lower courts did make genuinely mean-spirited hash in place of an admirable decision. The odds are always against any review by the Supreme Court in response to the appeal of any particular case, but the essential importance of the issues we are raising needs to be argued nonetheless in whatever forum is possible. Farmers are not the only people with an ox in the arena in this lawsuit; consumer issues loom even larger behind and under our lawsuit. These issues affect even justices of the Supreme Court and more strongly their great-grandchildren.
The issues at stake should not be taken lightly by anyone concerned about health, food safety, the environment, and the future of life on the planet, so the struggle needs whatever it takes to achieve wisdom and justice in the public interest. No less than that is conceivable, honorable, moral, ethical, or responsible. It needs engagement by all citizens whether or not federal judges are part of the problem.
In addition, the decisions from the two lower courts are so alarmingly and embarrassingly discrediting of the courts issuing them—if democratic idealism still matters, the Supreme Court might want to take the case just to set a higher judicial standard. They could want to take the case out of a greater sense of embarrassment than others may feel on behalf of the judicial system. In view of the negligent results four judges have delivered in this case so far, every other U.S. citizen should want to demand a review of their decisions by the Supreme Court. This should be basic.
The mere fact that almost no publicity has been given to the two decisions by the mainstream corporate media and that even the legal blogs have given the story bad and superficial coverage, shows the low level of responsible media expectation and the low level of associated democratic idealism on matters of food safety and nutrition. That reality has been as depressing as the decisions themselves.
If Alexis de Tocqueville were writing his book Democracy in America in the twenty-first century, the topic would be worthy of a chapter, but so would many other actions by the courts. The discussion would fit right in with the early 19th-century observations de Tocqueville made about the depressing level of public-spirited discernment then seen. The circumstance is not greatly better now, and public institutions can do little better than level of expectation among the people requires of them.
The Supreme Court accepted the Bowman v. Monsanto case presumably because they wanted to add their own views to decisions of the two lower courts. They could have allowed the lower court decisions to stand without adding their own opinion to them, and that would have made sense inasmuch as they did not want to change or significantly amplify the lower court decisions. Seemingly, they only wanted to add their own prestige to the resolution of the issue for the sake of any farmer who might be tempted to pursue the same chimera in opposition to Monsanto at any time in the future.
The decision in the case, written by Justice Kagan did demonstrate an appealing measure of humanity in the way the decision was written, and that by itself could be instructive elsewhere. It speaks to the need of the courts to address the needs and the the real confusions of the people and to do so with humane understanding about the causes of the problem.
Bowman did have a novel idea the justices clearly wanted to address, but the issues raised in that case were not one percent as important as the issues being raised in our lawsuit. The question now is whether or not this view of the differences will be perceived, understood and agreed upon. Clearly, this understanding of the issues did not penetrate in either the Federal District Court or the Appeals Court. That either suggests it is not easy to agree on, or it suggests we have failed to make our issues clear enough. Either way, Justices of the Supreme Court who eat organic food or want to avoid transgenic food in their diet might be needed before they will want to take the case. If they have spent their lives focused only on arcane legal detail and not any more than many others on the food they need to eat to stay healthy, they likely would not know why they would need to be concerned about the issues we are raising.
Justice Scalia is noted for hunting wild game, and that suggests he probably eats it also. If so, the game animals and fowl could be eating transgenic grain or wild transgenic canola, unless they reject it as some animals have been known to do. (Some have also died from eating transgenic crops.) Since Justice Kagan joined the court, she has shown interest in joining Scalia on his hunting trips. That might be safer and more cautious than going on a hunt with former Vice President Cheney, but most important it might make two justices with a concern about the nutrient quality of the diet made available to wild game.
Possibly some of the Justices might prefer to eat organic food, and if they do, that could increase their interest in the issues being raised. Maybe it will be enough if some of their law clerks eat organic or other non-transgenic food. The campaign for the labeling of transgenic food has attracted more interest from younger people than it has from older. That could be because older people have a long-standing habit of consuming whatever food is provided for them—without examining it critically. The amount of analytical care needed now is not easy to master.
Only those wanting to eat organic or wanting to avoid non-transgenic food might perceive a personal ox in the arena. As our own polling has shown (and some of it was done out in front of the Supreme Court), the vast majority of the public still does not understand the importance of the issues we are raising. If the Justices think the public is not concerned about the issues we are raising or if they think they are unimportant to health, the environment, and the future of life, they are less likely to take the case, even if they may find an issue in the failure of the lower courts to consider precedents set by the Supreme Court on the core issue of standing to file the lawsuit.
Nonetheless, good legal reasons do exist to inspire the Supreme Court to want to take the case. They could want to clarify the precedents on legal standing on cases like ours, or they could want to resolve the anomalies posed by two highly divergent and almost equally nonsensical decisions. A major motive for the Supreme Court could be a desire to impose unifying and sensible logic on the legal system. That is much needed in this case, and it has not been exhibited.
The Appeals Court decision did accept our right to bring our issues before the court, and that was an important victory over the decision issued by Judge Buchwald, but it was not enough to fix many other problems. It may be better to appeal to the Supreme Court from a position suggesting our case has merit than it would be to come before the Court looking like the beaten dogs Judge Buchwald wanted us to be.
Our case was not treated as frivolous or unreasonable by the Appeals Court judges, and we were not rebuked for bringing it as we were by Judge Buchwald. Moreover, the senior judge on the appeals panel—who is the judge who wrote the decision—stated at oral argument that an important public interest was served by the issue we were raising. That was hopeful to hear even if the final result was less hopeful. That positive point of view is not taken for granted under the circumstances even if the ultimate decision by the court is strenuously faulted.
The majority of both the likely future and so far seen transgenic crop contamination would probably exceed one percent, but there is enough contamination below 1% to now make damage suits possible in the tiny window between zero and one percent. The only question is how long it might take people to file a damage suit now that the threat of a counter-suit for patent infringement has been removed for contamination under one percent.
Maybe some damage suits have been filed already, but no news of one has been widely reported. Most would likely be waiting to see what the Supreme Court does about the decision. Perhaps coverage of the possibility has not been seen in the prominent media because the corporate forces dominating the news in the United States do not want to alert organic or biodynamic farmers or other growers of non-transgenic crops about the opportunity made available to them by the Federal Circuit decision.
The Appeals Court decision does establish an important principle even if the decision is shameful in its totality. It might be given greater relevance through further future action by contaminated farmers as well as by the ensuing court decisions. The decision is minimal, inadequate, and embarrassing in a nation where equality before the law should be important, but despite that, the decision is not insignificant or trivial in its potential impact.
Beyond that, the existence of contamination of more than one percent establishes that contamination between zero and one percent existed at one point in time before the amount increased through natural spreading. From that, it could be argued that increased contamination is inevitable given the ability of transgenic crops to spread themselves. This argument could be used to bring damage suits now, no matter what the level of contamination. No reasonable principle could be used to stop them if the courts accept the fact that contamination is not a static matter that stays the same once it has occurred.
If the spreading of transgenic contamination without the benefit of human agency beyond the planting of the transgenic crop can be successfully established, as it should obviously be, then, no patent infringement lawsuits should be possible no matter what the amount of contamination may grow to be in the fields of organic, biodynamic, or otherwise non-transgenic farmers. Under this logic, which could be unimpeachable among people who care about logic, any amount of contamination makes clear that less than one percent once existed. That could be all that is necessary to justify any damage suits.
The trouble is: more legal process may be required to fully establish this logic under precedent, and that provides another reason why the Supreme Court might want to take the case. The existing Appeals Court decision does not do enough to address our core concerns in the full public interest, and the Supreme Court could see this issue differently than the Appeals Court and the District Court. Hopefully, they will see the issues more comprehensively
The justices might readily see that neither of the prior decisions sufficiently address the public interest. By issuing pro-corporate and pro-patent decisions protective of Monsanto’s interests and the generic corporate interest, balanced service to the public interest has not been accomplished, not even if Monsanto has now been obliged to concede something they had not previously been willing to state, permit, or even discuss. Part of the question waiting to be answered by the Supreme Court is whether the justices want to serve the public interest or whether they want to join the lower courts in serving Monsanto’s corporate interest, perhaps assuming that to be the same as the public interest.
The Underlying Threat to Market Integrity, Health, and Wisdom
In the face of the decisions by both courts, we remain centrally concerned about protecting the integrity of non-transgenic food markets, and this is especially important when the existing organic standard established under the National Organic Program (NOP) does not require farmers to find transgenic contamination at any level. Inasmuch as no “action level” for transgenic contamination exists in the standard even though an action level does exist for potentially less dangerous and less long-lasting contamination, the need persists for correction of this unsafe, unhealthful, anti-nutrition anomaly.
The problem would have been fixed already if organic integrity was as important as it should have been in an honorable and morally diligent nation, but this is not an issue needing to be addressed now by the Supreme Court. It needs to be addressed by the USDA and the organic trade groups, and that will not happen until consumers stand up to demand it.
While tolerance is set at zero for transgenic contamination under the NOP if the farmer knows about the contamination, the standard does not have much meaning when farmers are allowed to be ignorant about the existence of contamination and are fully allowed to sell products contaminated at any level if they do not know it exists. With an incentive established for organic farmers to try to remain ignorant about whatever contamination may exist and despite a countering incentive now in existence in the Binding Covenant affirmed by the Appeals Court encouraging people to find contamination as soon as possible so a damage suit can be filed against the source of the contamination, the perverse incentive in the NOP still does need to be fixed—especially when no level of transgenic contamination has been proven to be safe or healthful and not anti-nutritional.
If consumers were widely informed about the anomalous provisions of the organic standard in the NOP, their confidence in them would be undermined, and it should be. If the government is not going to run the NOP as well as the best private organic certifiers in the past, then they should privatize the NOP and let it be managed by a private certifier in the public interest. Consumers should have a basic right to expect better, and they should even have a right to expect those causing the contamination to pay for whatever remediation and testing is needed.
In a world where transgenic trespass was taken seriously the same as any other egregious, violating trespass, such as a home invasion, Monsanto should be required by law to provide testing in every grocery store where non-transgenic food is sold, so that customers can test any fresh food or have it tested before their own eyes prior to buying it. Hopefully, the issues with packaged foods will soon be taken care off through required labeling, but that may not cover all the fresh food as well as is needed. For example, what about beef labeled as grass-fed that has been raised on transgenic Bluegrass and transgenic alfalfa.
This problematical aspect with the organic standard lies in the nature of a “process-based” standard that does not require certifiable results. A way is needed to do better, and in a fair-minded nation, Monsanto would be required to pay for all testing, and they should also be required to pay for buffer zones and other barriers against contamination. They are the trespasser, and they should pay. It should be a cost of doing business. When best efforts are considered good enough on transgenics but an action level does exist for pesticide contamination, the anomaly becomes totally ridiculous, especially when many people are now more concerned about transgenic content than they are about any other dangers.
At a minimum, the same standard should exist for transgenic contamination as exists for pesticide contamination, but if the transgenic standard were set at 5% to match the action level for pesticide contamination, then the Binding Covenant should also be set at least at 5%. This would seem to be minimally logical given the polling showing the public more concerned about transgenic contamination than they are about any other food contamination apart from pathogens. This still would not meet the need stated in our complaint for a Declaratory Judgment, and it still would not confront the issue suggesting even one percent of contamination might not be safe, but it would be modestly better than the status quo.
An action level for transgenic contamination is more important because transgenic contamination is self-replicating and thus can increase in amount, but Glyphosate (Roundup) contamination should be incorporated with the transgenic action level. It is worse than other chemical contamination because the incorporated adjuvants enable it to penetrate the food. Thus, it cannot be washed off. That makes the contamination much more dangerous, and the dangers are not speculative; they have been established by research, not that more research is not still needed. It is needed to affirm and amplify the existing studies and the findings they have produced.
The public is right to be more concerned about transgenic contamination, and that is a major reason many have wanted the transgenic content of food to be labeled, but few have yet forcefully demanded labeling nationwide to provide information about the amount of pesticide contamination found on and in food. They should want that information along with the information about transgenic content, but they will not get either until more people get organized and activated locally, in their state, and nationally.
Even the close votes in California and Washington state have not been enough to move the project forward in many other states and cities. Cities could also vote to require labeling, and they could join with the states in moving action forward. Now that the Seattle metropolitan area and others in California have established a desire of labeling, they could vote to require it once a number of other cities and states would join them and a period of time is allowed for that group to take shape. Now that it is clear that the desire for labeling is greater in cities than in rural areas, the cities should act to join the movement.
Needed also now is a movement to label chemical content, especially now that the extensive health damage made by chemical content has been made clear. Pressure should start to build on both issues. Knowing the amount of pesticide contamination should be especially important for any non-transgenic food. All the pesticide, fungicide, and herbicide companies should be required to pay for this testing as part of the cost of pursuing their enterprise. The cost should not fall onto taxpayers. It should fall on all those who want to sell the products.
If all consumers fully understood the health dangers resident in the chemical contamination as well as the transgenic contamination, people would not be passive about the issue. Industry would fight against the requirement, but it is a battle waiting to be waged, especially when chemical contamination, including Glyphosate herbicide contamination is a very serious health issue. The issue is no less important than the issues with DDT in the past. Health costs in the United States cannot be significantly lowered until these issues are engaged. This is more important than a better healthcare law. Causes must be addressed.
All testing for the contamination should be performed by independent research institutions paid for by the government, but the bill should be sent to the companies whose products make the testing necessary. At the same time, the organic standard needs improvement on all these chemical and transgenic issues, but it should not end there, because organic food is only about five percent of the market. Failure to take action is abusive. The matter likely would have been addressed many years before now apart from the influence of Monsanto and other self-interested agribusiness corporate players with influence at the Department of Agriculture and on the National Organic Standards Board (NOSB).
The NOSB is the body responsible to recommend organic rules to the Secretary of Agriculture, but it has weight in determining what the rules will be. Money talks in Washington, and those without it have trouble getting a hearing. That includes farmers whose livelihood and even personal honor depends on the integrity of the National Organic Program. They have limited collective leverage against the power of organized corporations and their associated trade organizations, and that is the reason they need the government committed to stand up for them.
When the NOSB has been loaded up with corporate players with interests to protect and their primary interests are outside the organic market place, a dead rat can be smelled in the way the NOP and the membership on the NOSB has been managed. The dominant companies sometimes in the past have been those owning small organic subsidiaries that have little influence over the larger corporate priorities, and the demonstrated voting interests have not been those of the subsidiary. These companies have transgenic content routinely contaminating all their other food products or used in them intentionally, and they have not wanted a strict standard in the organic market to disrupt their other larger markets for their transgenic products. That needs to change as part of the work of the rising public demand for change.
This issue has been so important for some of the companies with organic subsidiaries that they have injected both funding and other effort into the fight to prevent transgenic food labeling. Even though transgenic labeling should be a major issue of marketing importance for any company selling organic food, it has been more important to some than to others. Some with a big stake in the issue sat on their thumbs, while others with a smaller stake did all the work.
For example, Whole Foods refused to donate funds to the campaign for Proposition 37 in California in 2012. They were also slow to endorse the campaign, even though they are a major beneficiary of the increased consumer awareness resulting from the campaign. This behavior needs to be the focus of public attention as much as the boycott against the companies funding the food industry fight against labeling.
Whole Foods’s market expansion depends on increasing public awareness about the dangers of food that is not organic, so they need to be a leader on the matter, but they have not acted as if the issue was as important as it should be. They let other much smaller companies with a stronger moral commitment carry the burden, and the campaign in California lost for lack of funds to get the message out before nearly half of California voters had already cast their votes. By itself, Whole Foods could have made enough difference to close the 2.8% difference in the final vote count between “Yes” and “No.”
A Trojan Horse should be seen when companies with an overriding interest outside the organic market take over organic companies or as in the case of Whole Foods sell many non-organic products, even though they are the nation’s first certified organic grocery chain. Taking over organic companies and giving massive shelf space to the selling of non-organic products in stores has been seen as a way of subverting the organic marketplace instead of helping to build it. These things should be highlighted as a conflict of interest for consumers to know about.
Any company owned by a larger company with divergent interests should stimulate mistrust or at least be the cause for raising questions. Accordingly, assurances and guarantees should be sought that organic subsidiaries are independently managed with no intervention permissible by the parent company. A public trust is involved much as it is with the ownership of media outlets, but that trust has also been compromised. If it had not been, the Fairness Doctrine for broadcasters would still be in place.
Companies owning organic subsidiaries should want to make sure the integrity of their organic labels is protected. The composition of the NOSB has been a bit better recently than it was in the past, but it can be subject to swings in direction depending on which party is in the White House and somewhat, at least prospectively, on who the particular President may be. Even though President Obama eats from an uncertified organic garden on the White House lawn and committed in 2007 to the labeling of transgenic food, he has not taken action on the commitment. He has been a visible advocate for neither organic integrity or transgenic responsibility, but he may have been slightly better than his predecessors on some details even if he is worse on others.
For all of his inadequacies on many matters, President George W. Bush was enough of a West Texas good old boy to have a better agricultural feel than Barack Obama, but Bush’s rural orientation did not result in much pro-farmer leadership on any issues apart from biofuel. That raised prices for corn and soy farmers using Monsanto’s system, and it cemented Republican leverage with many of those farmers, but visionary wisdom in the project was missing. More visible was political expediency in service to Republican farming areas of the nation and favoritism for biofuel and biotech agribusiness.
President Obama has proved himself unwilling and probably unlikely over the final three years of his Presidency to take a strong personal interest in questions of agricultural integrity. Having praised the contributions made by his Agriculture Secretary, Tom Vilsack, to the biotech industry, it seems fair to conclude that agricultural wisdom, healthful, nutritional vision and a commitment to thorough independent, objective research will likely be absent from the rest of the Obama Presidency unless changed is robustly demanded by public action.
Until government action is seen, President Obama has wanted to sleep on the issue as much as both Bush Presidencies and also the Clinton and Reagan administrations. The government will not be reclaimed from the dominance of corporations until public action is taken to require it. The issue in the United States is little different than it was with the Mubarak regime in Egypt. They were also exploiting the people for the benefit of economic chronies.
Most important, new legislation governing transgenic farming and food is needed, but it is not likely in a political climate where corporations are dominant. Not since President Truman have farmer interests had much leverage against the power of agribusiness corporations. In 1935, the total number of farms was about 6,800,000 and in 2012, the number was 2,200,000 farms. That is an average loss of farms at a rate of more than 1,100 per week for 77 years. The total national population was about 125 million in 1935 compared to 320 million in 2013. If farm families in 1935 averaged about four people, that would have meant that almost 25% of the population was still on farms, and that gave them political power.
Even though organic farms in 2013 are a much smaller group, totalling about 15,000, they have leverage because they are better allied with their consumers than most other farming groups, but the organic market is still less than five percent of the total food market. It has been growing but significant political impact is a long way in the future. For this reason, we need to ally with a broader public concerned about the health, safety, and nutritional issues caused by transgenic food and also strongly concerned about the integrity of the organic market as one partial way to address the transgenic concern even among those who buy only some organic food.
Similarly challenging is the effort to find people with personal farming connections in the Congress at least historically. According to the Huffington Post in 2011 using information from the Environmental Working Group, 23 members of the Congress got farm program payments between 1995 and 2009. The group included 17 Republicans and 6 Democrat. The story did not break the group down between the Senate and the House.
GOP members received $5.3 million with $3.3 million going just to Congressman Fincher of Tennessee. The Democrats received almost $490.000 with $442,303 going to Jon Tester of Montana. By this reckoning, farmers are about 4% of the Congress or with about twice as many as are in the nation, but Democratic farmers are just a bit more than one percent of the Congress while Republicans are three percent. The difference could result from the greater strength of Republicans in many farming states.
The presence of this farm delegation in the Congress has not helped to change the Congress on farming issues or connect the nation’s people to the sources of their food, and if this is the way it is in Congress and maybe the Executive branch, no one should expect things to be much better in the courthouse. The worst of it is the low level of concern people show about what they eat and the impact it will have in the years ahead on themselves and their descendants. Concern is not increased unless people are educated about nutrition and the food-related health issues, but historically, doctors have not been educated about nutrition and they educate their patients even less.
Transgenics have recently raised bigger health and environmental issues, but concerns should have existed about nutritional quality, health issues, the environment and particularly chemical use years before the transgenic negligence, abuse, and profligacy got started. If concern about chemicals had been shown, demand for closer investigation into the threats from transgenic crops might have been harder to neglect. Healthcare costs also would not have risen as they have with a doubling of chronic afflictions since transgenic food has entered the market.
Currently, contamination less than .9% (just less than one percent) is allowed for importation into European nations (where concern about transgenic food is much greater than in the United States) and that amount of contamination is also allowed by the Non-GMO Project when its label is used to certify food as non-transgenic. Both these facts fly in the face of the reality that no studies have established the health and environmental safety of even this relatively small amount of contamination. The effort is seen to face the reality of contamination, and that has suggested the existence of a prudent conclusion, but no such conclusion can be justified by any research.
The issue is similar to being a little bit pregnant. With transgenic contamination, both crops and people are either contaminated or they are not contaminated, and a small amount of contamination is likely to lead to more contamination unless steps are taken to forestall the expansive growth of more. Little is yet known about the capacity of people to reject transgenic contamination and overcome its impacts, but anecdotal reports tell of symptom improvement when the consumption of transgenic crops is ended. That suggests rejection of the transgenes if they are not being constantly replaced by the diet.
A little bit of contamination may be as bad as a lot of it just because of the way it can spread and multiply if the ability of the body to reject them is impaired. Because transgenic contamination is self-replicating and transfers transgenes to bacteria and other microorganisms (including the gut bacteria of people and microorganisms in the soil), it creates dangers far beyond the pollen drift (that has been mostly the only publicized transgenic risk) and even beyond much pesticide risk, serious as that is also. So far, it seems that Glyphosate kills good probiotic bacteria or allows it to be overcome by pathogens while promoting the growth of Roundup-Ready gut bacteria, but more studies are needed to affirm the facts and understand the body’s health promoting processes.
Transgenic crops are held responsible, along with the associated chemicals used to grow them, for a significant portion of the increasing healthcare costs in the United States and elsewhere, but worry about the issue is not intense even among many people who favor the labeling of transgenic food. That is likely to be the case only because most people still do not know enough to start to become more concerned.
For many, the issue of human transgenic contamination is, “Ho Hum,” as it was for Roger Johnson, the President of the Farmers Union, for example, back in 2011 when he showed he was not any more worried about transgenic contamination than he was about pesticide contamination. His organization had taken a position in opposition to transgenics, but he did not personally assume that position. Johnson needed to know more than he did, and maybe he now has learned. The prior national president of the Farmers Union, now Minnesota Agriculture Commissioner, Dave Frederickson, could have informed him. Without that help, at the time when transgenic alfalfa was being approved for public release by the USDA, Johnson did not distinguish between transgenic pollution and any other kind.
Drifting with the corporate agenda has been easy for many people to do, and as a result of that, the needed studies have not been made or even widely demanded. The studies are not made in the United States because the owners of the patents on the transgenic crops have been able to prevent that from happening. They can control the release of whatever studies are done, and if they allow a study, they set the terms enabling it to be done. The problem could be fixed through legislation, but that has been neglected as a result of agribusiness and biotech corporate power via lobbying and campaign funding.
The so-called Monsanto Protection Act (also more benignly referred to as the Farmer Assurance Provision by its supporters) included in the Continuing Budget Resolution in March 2013 by the action of Missouri Senator Roy Blunt shows how the political system easily serves corporate interests. Subsequently, a major public campaign against this law was needed to get it removed when the Budget Resolution came up for renewal in September 2013.
In the absence of U.S. research, reports and studies have needed to come from abroad, but some U.S. doctors have told about their findings with their patients. Both have helped to fill the void left by biotech industry control and related financial influence over both agricultural and health research, but they are not enough to rescue international respect for U.S. management of transgenic agriculture in the nations where concern is greater than it has been in the United States. Neither are the affirmed reports from individuals or the livestock affliction reported by both farmers and veterinarians enough to cause change in the public reporting on the health issues. More information is needed before all needed facts can start to be uncovered and can start to make big difference in what the public knows.
Nonetheless, medical associations, insurers, and medical practitioners have begun encouraging consumers to avoid eating transgenic food. This is considered important to personal health by those with the most knowledge on the subject, and the studies reported from other nations only reinforces the growth of greater concern among the public even if it has not yet influenced public officials, judges, and those others who may get most of their news from the corporate mainstream press—and other legacy media.
The American Association for Environmental Medicine has been a leader in alerting the public to the dangers of consuming transgenic food, but the American Medical Association has declined to become involved. More doctors need to be heard from just as much as more detailed research is needed, but as long as doctors are not concerned about nutrition and food-related health issues, more from them does not seem likely.
Even celebrity doctors like Dr. Mehmet Oz have not always been clear and consistent on the issues surrounding transgenic agriculture, but Dr. Oz has hosted discussions about the issues on his television program. On one of them, a spokeswoman for transgenic agriculture refused to debate with Jeffrey Smith, the author of Seeds of Deception and Genetic Roulette, which is also the name of a movie made by Smith. It was narrated by Dr. Oz’s wife, Lisa Oz.
Momentum is building but much more needs to happen before the public can know enough to move the government and the courts. Most important is the need to change the way the corporate mainstream media work in the United States. They have made it possible for the government and the courts to do as they have done. When the people are kept in the dark to serve the corporate agenda, the rest is inevitable. The political character of the nation has changed because of the information made available and kept from the people. As part of the change, many have been turned away from morality to embrace the amorality more typical in the corporate culture. As people have identified themselves with corporations, they have absorbed the values of corporations.
These issues may need to be addressed before the policies of government and the decisions of judges can be addressed. Yet, if that is necessary, it may be too late to do all the work needing to be done before all the damage and destruction has passed failsafe. Passive, oblivious, ill-informed citizens leave a price to be paid, and they also undermine the example the United States can set for the people in other nations. At a time when a valued example is needed, the United States has not provided it, and that is because of the subservience it has exhibited to the power of major corporations like Monsanto.
The Changed Outlook on Crop Damage Liability and Ten Differences between the Federal District Court and the Appeals Court Decisions If damage suits are soon filed over transgenic contamination, it could start to influence farmers growing transgenic crops to seek traditional seed alternatives. They might want to avoid the risk of causing contamination for neighboring farmers growing non-transgenic crops. They are already being influenced by weed and insect resistance, and the addition of another factor might help them reach a tipping point—if farmers are willing to begin relearning the farming skills forgotten particularly over the past generation as chemicals and transgenics have taken the placed of knowledge and farming skill.
The Monsanto system of agriculture never made common agricultural sense to people with the vision needed to anticipated the farm-related consequences not to mention health, safety, and nutritional sense, but many farmers have fallen for the technology hook, line, and sinker. Monsanto says their customers in the United States total about 250,000. That is the measure of the power of their appeal or the willingness of many people to follow the siren song technology has sung to them. Despite all the available evidence to the contrary, some even repeat the long-standing lie that Monsanto’s Roundup is safe enough to drink. That is how bad it is in some places.
This is before all the ignored dangers related to Monsanto’s transgenic seeds is even engaged. The appeal of the wishful ideal has been so captivating because it has made farming much easier to pursue. As one farmer has said, Monsanto’s system makes farming so easy, “Even a monkey could use it.” This could be valuable if people have been made so stupid as a result of their ill-considered diet and their use of chemicals, they are no longer any smarter about what they can do than monkeys are. If that is the place where people have descended, they would no longer possess the morality or the wisdom needed to avoid the dangers and destruction Monsanto has delivered.
Because of the terms of Monsanto’s adhesion contract agreed to by opening a bag of their seed, all contamination liability is born by farmers using the seed and none by Monsanto, but as long as Monsanto has been able to establish market domination, change in the established thinking seems unlikely, unless something happens to cause farmer attitudes to change. If the facts were more widely publicized, it could start to change the way farmers think, but as long as most farmers do not read the contract they have tacitly but maybe unwittingly or unknowingly agreed to, they may not know about the liability exposure they have agreed to accept.
Even more important, farmers do not have much time to study available information about their chosen farming methods. The modern work of farming is demanding at the scale most full-time farmers need to live with, and it does not leave farmers a lot of time for learning after the work is done. Yet another problem results from concentrated control over the seed industry. Because of that, alternative seed sources are hard to find, especially for those accustomed to buying all their seed locally where many dealers have been responsive to Monsanto’s controlling and market-monopolizing incentives.
Of course, Monsanto might choose to help farmers sued over contamination damage, but they are not required to do that, and it could be dangerous for them if they did. If they were to help one farmer, they would find it hard to know where they should draw the line in deciding not to help others. They could take a generic interest in the issue, lobbying for new legislation for example, and they have done that in 2013 on the so-called Farmer Assurance Provision and the King Amendment to the original House version of the farm bill still in conference at the end of 2013 as effort is made to reconcile major differences.
Actively or not, Monsanto was also behind the creation of the AC21 Commission by Secretary Vilsack. The goal of that body is the promotion of “coexistence” between transgenic and non-transgenic agriculture by providing taxpayer subsidized insurance to pay for damage to non-transgenic crops. This would be another crop insurance program helping to transfer wealth from farmers and taxpayers to insurance corporations like the Farm Bureau and others. A further goal of the project is to buy off farmers growing non-transgenic crops by paying them whenever their crops become contaminated by transgenic crops. It is not a sustainable idea, but neither is transgenic agriculture and the associated use of chemicals.
The governing assumption under the use of crop insurance to promote co-existence between transgenic and non-transgenic agriculture is: money and the loss of it is the only thing non-transgenic farmers are concerned about. That is not true. Most farmers who do not want use Monsanto’s system hold strong views about the reasons it is wrong for them and wrong for all farmers and all consumers.
Most important, the insurance project is fraudulent because co-existence is impossible. The only question is about the amount of time it will take for the gene pool to become contaminated. The project is an effort to buy off dissent at taxpayer expense, and the best that can be said is that the perpetrators of the project believe that transgenic agriculture is universally valuable without reservation whether or not unbiased evidence supports the contention. This is what people need to think if they believed the full triumph of transgenic agriculture is a good and promising idea.
Inasmuch, as our central concern is about threats against food and feed healthfulness, safety, and nutritional quality, we feel it is important in the public interest to appeal the decisions of both lower courts to the Supreme Court in the hope they will find, on the basis of existing precedent and the facts presented in our complaint, that we should have a constitutional right to our day in court to adjudicate the issues we have raised. The arguments made in the legal briefs and in the amicus briefs supporting our contentions can be read on the page containing all the Key Legal Documents in the lawsuit, and both court decisions can also be found on this same page.
While Judge Buchwald was negligent in our opinion in tolerating, promoting, and enabling Monsanto’s corporate amorality against the public interest (in collaboration with the U.S. government’s similar amoral negligence in not providing law and regulations wisely and appropriately governing biotech agriculture), the judges of the Appeals Court of the Federal Circuit, Judges Dyk, Bryson, and Moore, accepted our right to pursue our lawsuit, and found we were serving the public interest in doing so. Even if they found a way to protect Monsanto’s interests under a standard that has minimal worth as a practical reality, they did determine that we had a meritorious and judicable concern. For us, that was a victory compared to the opprobrium Judge Buchwald expressed toward our issues in her decision and toward us personally in the attitude she cornveyd between the lines of her decision.
Determining or proving how contamination of less than one percent came to exist could be difficult—if it is ever found at all, but the promotion of greater vigilance could make a difference for the benefit of many people if it would be possible to pay the cost of it in time and money. Because of the way the organic standard works under the NOP, with its counter-incentive against the discovery of transgenic contamination, damage less than one percent if it has significant total dollar value could be worth finding now that a damage suit can be pursued without a threat of countersuit for patent infringement. Tracing the damage to a source could be worth the cost, now that past incentives have been reversed at least for contamination less than one percent.
As long as patent infringement lawsuits were greatly feared and could not be covercome even for contamination of less than one percent, they intensified the incentive not to know about any contamination. Some people have believed what they did not know could not hurt them, but what they did know could hurt them. Now, if the source of the problem cannot be determined, damage suits might be difficult to file, but if the source can be learned, the cost could be worth the associated effort given the possibility of recovery. Transgenic crops do have a unique signature, so their source can be learned. That can be used as it has been used during the summer of 2013 to track the source of the anomalous transgenic wheat contamination in Oregon.
Patent infringement suits could be harder to bring now than they were when Percy Schmeiser was sued after he was contaminated by wind-blown seed from the truck of a neighboring farmer growing Monsanto’s transgenic canola. If the change occurs, it could be the result of putting Monsanto’s promise more strongly on the record and having the benefit of even a limited and weak Binding Covenant. If damage suits can be filed even after the contamination has grown to more than one percent, Monsanto might proceed with greater caution than they have in the past, and so might the farmers using their seed. Both might view their situation differently.
Nonetheless, punitive patent infringement suits would not be impossible at least until the court precedents have been established, and about that, farmers have worried about the possibility Monsanto could contaminate farms intentionally just to make a patent infringement suit possible as a way to retaliate against farmer opposition. Some believe this has happened in the past, but if it had, it would be difficult to prove. The fear of this and other kinds of retaliation caused many to pass on the opportunity to join our lawsuit. Some even feared retaliation from the government in their role as Monsanto’s ally.
If an action level for transgenic contamination were set by the National Organic Program, whether or not it was above the one-percent level, it would increase the need and demand for much more efficient, easy, and less costly testing. Extensive testing using the existing protocols would be a large and excessive cost burden on organic farmers and others growing non-transgenic crops just as they are now for other non-transgenic farmers required to certify the absence of transgenic content in their crops. This includes those selling to markets abroad and those who want to make certain they avoid a black mark against their own commitment to non-transgenic integrity.
In a fair world and especially a fair-minded U.S nation, these costs should be borne by Monsanto, because they have caused the problem. Only a company or people with the morality of a snake would want to weasel out of the obligation to pay for the damage they have caused to others, but at present, a law would be needed to require them to pay. Morality is not an operational concept in the world of corporations and their allied politicians. As long as that continues to be the governing reality, the introduction of moral considerations seems unlikely given the lobbying power the biotech corporations have been able to manifest to protect their interests.
If making polluters pay to clean up their messes had been the practice in the United States, more polluters would have paid to clean up specific Superfund sites, but instead most of the clean up has come from the established trust fund, not from the companies directly responsible. That was probably the intention of the program from the start, and the original Monsanto Company (not the current company founded in 2002) has been considered to have been responsible for multiple Superfund sites.
Similarly, on the clean up of transgenic contamination damage, some would argue the U.S. government should pay the costs, because it has allowed the technology and caused the abuse to occur, but that would transfer the cost to taxpayers while letting the offending officials who opened the transgenic floodgates go free without any prosecution or seizure of assets. If officials had to be personally liable for the problems caused, they never would have been caused to start with. That needs to be considered before the problem can be rectified.
As long as things continue as they are, elected and appointed officials face an incentive to serve the lobbyists and those organized to provide them or their political bosses with the greatest amounts of campaign funding. The incentives of the system need to be changed before elected officials and those serving their interests are likely to do better than they have been doing over recent decades.
The question is: what is the root source of the trespass, and who should be responsible for it, and then after that, who should pay to clean up the damage including the human health damage. That would quickly bankrupt even a company as big as Monsanto. Their full annual revenues over the decade of their existence would not even get started on the issues needing to be fixed. Even addressing the soil damage could be a project needing a quarter century of continuing effort, if that would be enough.
Phil Geertson of Geertson Seed, the lead plaintiff in the lawsuit against Monsanto over the public release of transgenic alfalfa has been concerned about the need to clean up mess caused by Monsanto even before the public release was authorized. To find out the costs involved, he collected roadside samples of alfalfa in the course of his travels around his region in the Northwestern states. Over 80% of the samples tested to be transgenic back in 2010. This might have been the result of the contamination caused only by Monsanto’s many test plots of the crop.
Justice requires someone other than the victims to pay, and if they do not, justice is trashed along with the integrity of those evading it. If the victims must pay, the market prices for their products must be high enough to allow the costs to be covered. That effectively passes the cost over to consumers, but it would also mean the victims would be able to fully control their prices so they can cover the costs imposed on them. In a competitive marketplace, they cannot do that. That reality is not likely to change, so forcing the victims to pay is putting the cost onto those in the weakest position to be able to pay.
Even just the testing requirement could become onerous on farmers to the point of driving them out of business or out of the organic, biodynamic, or other non-transgenic business. That might be what Monsanto hopes for. Their business model seems to pursue that objective without countervailing scruple.
If this is the agenda, the Appeals Court panel might have collaborated with them, wittingly or not. If the contamination could be hidden, for example, in only a portion of the crop, that would mean testing many batches from all parts of a field, not just from whatever portion ends up being subjected to random testing in a truckload or a large bin. That increases testing costs and the obligatory need for the trespassing contaminators to pay it.
The decision by the Appeals Court is facile in treating the issue as if the contamination were equally spread throughout the entire harvest of an individual farmer, but that is not the way nature works. Once again for emphasis, transgenic contamination is not like a teaspoon of salt poured into pint of water. It does not dissolve and spread equally among all the kernels. Even an ear of corn may contain an random collection of both transgenic and non-transgenic kernels.
In creating a mess like this and not allowing any legal pathway for cleaning it up, the Appeals Court judges were either non-comprehending or pusillanimous in preventing our full range of contentions on the invalidity, misuse, unenforceability of Monsanto’s patents from being heard at trial. That means they looked at one piece of the issue, offering an inadequate ruling on that piece while ignoring the rest just as much as Judge Buchwald ignored core aspects of the issue she was asked to address.
Nonetheless, the Appeals Court judges did repudiate Judge Buchwald’s dismissal decision in at least ten important and distinct ways. They did that when they rejected her logic and replaced it with their own inadequate and escapist reasoning. Squeezing out from under the centrally important issues being raised made them reminiscent of Houdini.
Where Judge Buchwald was punitive, irritable, and angry at the plaintiffs for asserting contentions she did not want to tolerate regardless of the place where justice and wisdom reside, the judges of the Appeals Court seemed dedicated to finding a way to weasel out from under the truth by coming up with the most minimal possible decision serving the interests of Monsanto and other corporations—whether or not they possess any wisdom and are pursuing more than a profitable and continuingly abusive chimera.
If the decisions in this lawsuit are emblematic of the dominant attitudes and realities in the United States, the nation has come to a tragic pass, and the end stage of U.S. democracy will have shown itself to be in an atrocious moral state. The appeals court put off the full recognition of that situation by ignoring the major issues being raised and finding a way to escape them. That is not an example of what morally responsible, fair-minded, just, and wise people do.
Nonetheless, despite affirming no perceived need for the lawsuit to go forward, the appellate judges by their decision did not dump all the costs and burdens of the trespass on the victims while allowing the trespasser to go free. At least, for trespass less than one percent, they provided some recourse for a contaminated farmers and some severely limited protection against patent infringement lawsuits. That was better than providing nothing as Judge Buchwald had done. By applying their own logic as a substitute for the logic of Judge Buchwald, the judges of the Appeals Court rejected Judge Buchwald’s dismissal decision in at least each of the following ten ways:
• First, the Appeals Court judges granted that our case had merit when they found the need for and established the existence of a Binding Covenant in the court statements and commitments made by Monsanto’s lead attorney, Seth Waxman of Wilmer, Cutler, Pickering, Hale, and Dorr.
• Second, they made their decision on grounds Judge Buchwald did not perceive or reference even though she could have. The estoppel principle is well established, so she could have recognized it in the statements made by Monsanto’s attorney.
• Third, they did not find merit in the grounds Judge Buchwald did employ. That could be seen when the arguments in the Buchwald decision went unmentioned in the Appeals Court decision. The Buchwald arguments were simply side-stepped and ignored as much as the major issues placed in contention by our complaint.
• Fourth, they did not direct us to accept and accommodate ourselves to Monsanto’s domination over agriculture as Judge Buchwald had done. We were not directed by the Appeals Court to be comforted by Monsanto’s unenforceable so-called commitment not to sue. We were not effectively expected to put up no resistance against massive and continuing transgenic farm and food rape.
• Sixth, the Appeals Court judges recognized at oral argument that 144 cases and over 700 out-of-court settlements plus roughly 500 annual investigations is significantly litigious, despite the Buchwald claim that it was not. Monsanto’s counter argument is that this is not many when they have 250,000 customers, but what matters is the number needed to underscore the desired message, defend the companies patents, and to impose desired intimidation against farmers.
If one lawsuit was enough to fulfill the need, no more might have been needed, but they have needed to file as many suits as are required to serve as a disciplinary reminder to farmers and to protect their patents. If they ignore the need to defend their patents in every case where the need to do that is found, they risk losing them. On that basis the number of lawsuits is not a relevant issue, but it takes on relevance again when the lawsuits become a waved cudgel over the heads of farmers, and those farmers who are the biggest concern for Monsanto are those who do not want to cave in to Monsanto’s system of agriculture. Those are the farmers standing between them and total control over farming and food—and thus patent-related control over the people. Once that control is fully gained, they can use their food control to do whatever they might want to serve whatever objective they might choose.
• Seventh, the Appeals Court judges recognized that a small amount of contamination can increase in volume, and they at least asked Monsanto’s attorneys to explain during oral argument what level of contamination of a crop would be considered patent infringement. That question was asked more than once, and it did not get an answer. The need to ask that question alone showed the merit of our lawsuit, and Judge Buchwald either did not comprehend the need to ask this question, or she did not want to ask it. If she did not want to ask it, that could show bias from the start. Bias can be shown in both questions asked and questions ignored or side-stepped.
• Eighth, while the fine points of precedent related to our standing or right to a day in court did not find their way into the Appeals Court decision, the way the judges crafted their decision established no clear desire to view the precedents as Judge Buchwald had chosen to do, but the decision to affirm the Buchwald conclusion, even on different logic, meant the precedents were not important to consider. Thus, Judge Buchwald’s view of the precedents was simply ignored. Both views could be wrong, and we believe they are wrong. We hope the Supreme Court will be able to repair the error in the public interest and in our interest as plaintiffs will an important issue needing to have better judicial attention than it has so far received from either lower court.
We believe both decisions are worse than just wrong in that they reveal a desire to circumvent both justice and morality at public expense while serving the corporate interest and the associated politically partisan advantage. This outcome might be reasonable if the corporate interest in its technology was benign, but that would need to be proven, and our view of the evidence finds it unhealthful, unsafe, unwise, and reprehensibly destructive of the environment and the public need. That is the reason we believe Monsanto’s patents should not have been granted and should now be rescinded.
• Ninth, the establishment of a principle allowing no infringement claims for less than one percent of contamination could help to undermine the “strict-liability” standard allowing farmers to be sued for possessing any amount of the patented crop, including any above one percent, without paying a royalty. In aggressively defending the pro-corporate status quo, Judge Buchwald did not show an interest in the merits of examining the “strict-liability” issue among the matters that could warrant legal standing to bring our lawsuit. On this issue, the judges of the Appeals Court opened the door at least a crack.
Among the contentions in our lawsuit, we argue that the “strict-liability” standard is perverse, counterintuitive, and nonsensical in relation to uncontrollable transgenic crop contamination, but we did not use it to justify our constitutional right to a day in court in overcoming the Monsanto dismissal motion. Nonetheless, that could be an employed contention because strict liability is as definitively inescapable under current law and precedent as the ultimate probability of contamination. It puts us in jeopardy whether or not Monsanto recognizes our contentions or has never heard of us. We are at daily risk because it exists, and that, alone, is a real, immediate, and meritorious issue. It is a sword of Damocles hung over our heads continuously.
“Strict-liability” has been absolute with no exceptions, but now the Appeals Court judges have made a tiny exception. Accordingly, they have eroded the absolute power of the “strict liability” principle. If it could be eroded in one instance by an arbitrary one percent, it might be eroded in another as well. The judges have put their foot in the door on behalf of a completely arbitrary one percent rule with no clear logic supporting a rationale for drawing the line at one percent. Nothing stated by Attorney Seth Waxman in court justifies the choice of the one percent limit. Because it is arbitrary with no standard or principle to support it, five percent or ten percent could be equally logical as an arbitrary choice, and this reality gives us a position to argue the perverse nonsense that is the “strict-liability” principle in the case of biological contamination.
• Tenth, whereas Judge Buchwald showed a desire to beat us like misbehaving dogs and send us home with our tails between our legs, the Appeals Court judges seemed grateful for our effort to raise an issue of legitimate public concern, even if they wanted to address it only timidly and ineffectively without seeming to grasp the larger issues needing attention. Perhaps, they only wanted to ignore them, so they could prevent the larger and more important issues from being adjudicated against Monsanto’s interest.
But back on the issue of “strict-liability” to say more, the fundamental question is this: if “strict-liability” does not apply at one level of contamination because of the existence of a Binding Covenant, how could it be argued to be binding at another level outside the jurisdiction of the covenant? The covenant has been determined to exist independently of the “strict-liability” principle, but if that is allowed the principle is no longer strict. It turns into flexible liability.
Think of it this way: because strict-liability is absolute, it has to be absolute to have merit; if it is not absolute, it cannot be understood as strict anymore. It is like the latch on a barn door; once the door is opened one percent without any clear logic or method allowing it to be locked again at that percentage of openness or “closedness” or at any other, the horses in the barn are free to push the door open the rest of way and get out of the barn. We are the horses in this example, and we should now be entirely free to make our claims against “strict liability” across the entire spectrum. This is an important contention we want our day in court to address.
This matter is important because the percentage of contamination could be and is likely to be different in whatever amount of a crop is not tested than it is in the portion that is tested. To know the true percentage, it would be necessary to test every kernel of corn on every ear (because of the way contamination occurs, all kernels are not equally likely to be contaminated), and every soybean in every pod on every plant of non-transgenic soy would also need to be tested.
The same extensive testing would be necessary for every potentially or actually contaminated crop that could be subjected to a patent infringement lawsuit or counter-suit against a damage claim. This amount of testing would not be feasible, so a sample would need to accepted as sufficient for the purposes of testing, but if damages were awarded, the defendant would only need to show the amount of the contamination was in fact greater than 1% if a different sample had been used or even if an average of several samples was decided upon as the fair way to decide the level.
Even if most of the cases of contamination are greater than one percent, and all those contaminated farmers would be counter-sued for patent infringement if they brought a damage claim for loss of certification and/or loss of income, the number who found damage of less than one percent could still amount to a large number of potential or actual damage claims if the source of the damage could be genetically identified, but the level of contamination is not static; it may be at one level in this month’s cutting of alfalfa and a different level in next month’s cutting or if pollen is traveling the level of contamination may be different today than it was yesterday. This is the nature of a dynamic living system, and the Appeals Court decision did not take that reality into consideration.
If the damage were known because someone was aggressively looking for it, the result could be lost markets, and as soon as the contamination became known, it would result in a loss of organic certification, but in the case of any amount of contamination, there existed a point in time when the total amount of contamination was between zero and one percent. The rest of the contamination grew from whatever the amount was on that day or that hour. Therefore, it should be considered an inevitable product of the initial one percent. That should allow the door to be opened to damages suits for any amount of contamination and also justify the overturning of the “strict-liability” principle because it can no longer be absolute.
The farmer whose crop has been contaminated cannot be made responsible for an amount of contamination that changes from month to month and year to year or even crop to crop without without any ability to assert control over it. He cannot be made eligible to sue for damages this month but not next month. That would be totally counterintuitive, perverse, unreasonable, and nonsensical. For that reason, the decision by the Appeals court is all of these—as if that would have been the intent.
No one can be so vigilant as to find contamination only during the time when it is between zero and one percent. That is like asking people to be vigilant enough to know when they have one percent or less of halitosis, one percent of cancer, or one percent of pregnancy. These are biological processes, and they cannot be made to adhere to some different non-biological or abitrary, static, mechanical scheme.
Thirty years ago, the American Agriculture Movement and especially one of its member farmers in Missouri was responsible for winning a change in the bankruptcy laws over a similarly nonsensical issue. Back then, under the law as it was written, a bankrupt grain elevator could sell stored grain belonging to farmers to discharge its own bankruptcy debts.
Even though the farmers had a receipt for the amount of grain they had stored, the debts of the elevator company were allowed to take precedence over the obligation to the farmers using the services of the elevator, and that was essentially legalized theft. It was like leaving your car with the door open and the keys in it with a sign inviting people to steal it. As a result of extensive farmer effort, including much publicity about the issue, especially involving the farmer, Wayne Cryts in Missouri, the law was changed, but it was not changed easily. It was not changed because the need for change was or should have been obvious. A fight was necessary, and Cryts went to jail at one point because he would not reveal the names of the farmers who helped him.
Now we are facing a similar situation of legalized theft through the abuse of similarly unreasonable patent law, and the abuses have been sustained by the courts because farmer docility and other citizen acquiescence has permitted it. When Percy Schmeiser’s canola was contaminated in Saskatchewan, he lost 50 years of seed breeding effort to develop lines of non-transgenic canola best suited for his regional climate. Monsanto claimed they owned his crop because it contained their patented gene and because no royalty had been paid.
The courts determined Schmeiser was wrong because he possessed Monsanto’s genes without having paid for them, but he was only doing as he had always done: growing a crop and saving some seed so he could grow the next crop; he did not feel culpable for anything beyond the saving of his own seed as he felt entitled to do. The courts did not find Monsanto guilty of destroying the results of all of Schmeiser’s traditionally-accomplished plant breeding work, but that should have been the ruling if trespass had trumped the “strict liability” principle in patent law. Perhaps, trespass would have been the stronger of the two principles if Schmeiser had as much political power and leverage as Monsanto has.
At one point in the struggle Schmeiser was even denied the opportunity to keep his funds in a bank, because Monsanto threatened to withdraw all its funds from the bank just because they allowed Schmeiser to maintain an account there. The rest of the story can be watched in the film “David Versus Monsanto” by Betram Verhaag of Denkmal Films.
As the result of the decision in the Canadian Supreme Court, Schmeiser was victimized and awarded no trespass damages even though the court did not require him to pay damages to Monsanto. They were not interested in the money; they were more interested in the principle established by the verdict. That verdict enabled them to continue pursuing their business plan as they created it and suing others like Schmeiser when the came to possess transgenic seed in a similar way beyond farmer ability to control.
If an organic farmer becomes contaminated, he or she suffers a loss, but as long as patent infringement claims can be used to trump any damage claim by farmers, the farmer has lost the opportunity to claim recovery from the damage and Monsanto has gained value equal to the amount they did not have to pay. This is a theft, and it is not just a theft from the farmer, it is a theft from the Commons. It is a theft from everyone who might be affected by the theft or by a similar theft from others.
Organic farmers are protected from the risks of contamination under the NOP only when they do not learn about transgenic crop contamination, but that is not a good answer from the point of view of the organic consumer, and it is not a good answer when assigning legal responsibility for contamination damage, when justifying “strict-liability,” or when determining if a farmer can be sued for patent infringement. All these circumstances require a “Yes” or a “No.” The consumer wants to be protected against the possibility of contaminated food, so anything that fails to provide that assurance is not good enough. In this, the theft is extended to the consumer and the safety he wants to require.
In the face of this situation, the AC21 Commission created by Secretary Vilsack has arrived with a nonsensical, maybe even diabolical proposal to provide taxpayer-subsidized insurance for farmers growing non-transgenic crops to protect them against transgenic contamination damage. Because this is a taxpayer subsidized program, it becomes a theft from the taxpayer and a theft from the Commons, without fixing the problem for the consumer.
At the most, the proposed program is another Monsanto Protection Project. The farmer is paid for the losses, but the source of the problem is not fixed, and those causing the trouble are not stopped. The costs that should be charged to those causing the trouble are transferred to the taxpayer. No morally responsible rectification of the issues is offered, and everyone can still be contaminated the same way in the future. This is continuing subversive abuse with massive, continuing and often self-magnifying, environmental and public health consequences.
Every time contamination occurs and a damage claim is made, taxpayers are forced to pay for it. They are treated as the dumb money-bags rich uncle who is always paying whether or not someone else should be paying under an honorable, respectable system of justice. The winners are Monsanto, their customers and dealers, and the insurance companies profiting from handling the insurance. The source of the problem and the theft from the Commons as well as the theft from many individuals is allowed to continue unabated as if that were universally valuable and there was some compensating benefit accruing to everyone as a result. If there were such a benefit, it would need to be proved, but it has not been.
The insurance is also unlikely to pay for all costs to the farmer, and as soon as a farmer would make a claim for damages, Monsanto could immediately claim ownership of the farmer’s crop unless a royalty is paid. If it is not paid, then Monsanto could sue for patent infringement, and the they would be forced to bring suit as an essential necessity of protecting their patents. Because of all these interrelated complexities and headaches for the farmer and even with the possibility of claiming damages, incentives still will exist for farmers not to know about any possible contamination that has occurred. If that works as a way to escape from a patent infringement lawsuit, an incentive would persist for farmers to avoid paying the premium for the crop damage insurance that is, in any case, a wealth transfer payment from farmers to insurance companies for something that Monsanto and their customers should pay for. The perversions of the system are continued without solving the underlying problem for the benefit of everyone.
This perverse project persists only because greater political power is on the side of Monsanto, and because money buys the supporting acquiescence of politicians and their allies who want the money driven political system to continue whether on not the public is abused by the way it works. Among the allies in enabling the system to continue are judges, and that can be the only reason why the two lower court decisions were written as they were. No one could possibly argue with a straight face that either decision embodied wisdom, justice, or defensible logic.
Even though both decisions pursue competing, divergent logic, they both grope for the best way to persuasively or sufficiently defend the same corporate interests. Because of that, they are a democratic embarrassment. Its like a shell game or a confidence scam, and no more than that. Accordingly, both decisions are no more than a swindle, one administered in one way and the other in another as if to see which one might be able to achieve the intended objective. Apparently, this is what the U.S. legal system has come to, at least on a case like ours but probably in other similar circumstances as well.
Similar strategies will have bamboozled many people who lacked the ability expose the underlying reality of the project and blow the whistle on the exploitation. Neither court decision pursued Truth or Wisdom—or even aimed at pursuing these objectives; both pursued their own different kind of expediency in the hope that it would be accepted or at least that it would pull the wool over the eyes of the targeted plaintiffs and enable both Monsanto and allied politicians to continue without constraint their mutually profitable scam against the public welfare.
That happens because expediencies are more appreciated under the modern U.S. value scheme than any other ideal. They are sought incessantly at the expense of any other alternative on matters large and small, and it is commonly taken for granted that they should be. Expediency has become the common U.S. way of handling affairs, both public and private, and it would not be possible apart from two changes: the displacement of morality by corporate-style amorality and the massive unbridled empowerment of money as political fuel and lubricant.
The system has been able to continue at multiple levels for decades because the people have been kept in the dark about the way it works. Its an insiders’ game run for the benefit of insiders and at the expense of the people it is supposed to serve. Just as the National Organic Program has been able to maintain a convenient appearance of integrity on transgenic contamination by failing to inform consumers about the dangers of contamination built into the design of the program, so has the political system done similarly with judicial support.
A woman is not less pregnant because she does not yet know she is pregnant. Some may not have known they were pregnant for nine months, but when a child appears they have found out. Then responsibility for parenting a child needs to be assumed. It cannot be disclaimed for lack of prior knowledge; reality is reality. The same is true with transgenic contamination and the moral destruction of democracy. For two decades, the law has subverted justice to benefit the political money flow to serve an exploitative purpose. This is the national shame needing to be ended. The modern Pharisees now need to be thrown out of the democratic temple.
Inasmuch as Monsanto has used its adhesion contract to put all of the liability for contamination damage onto the farmers buying and using their seeds while accepting liability only to the extent of replacing or paying the cost of the seed, any rise in the number of damage lawsuits or the imminent threat of them could help drive farmers away from Monsanto’s seeds. This could happen even if the Appeals Court actively tried to keep the threshold low enough to prevent much of that from happening. They could have set the level at one percent explicitly to make the contamination hard to find. If so, this would be no different than the effort to keep the consumers from knowing about the transgenic content in their food.
Both are devious instruments designed to allow the subversion and exploitation to continue without the informed consent of the people. When they have been kept in the dark routinely as citizens it is only a short step beyond that to keep them in the dark as consumers, and the reverse is also true. This is the result of a political system and a culture overrun by corporate-style amorality where everyone pursues competitive self-interest without regard for those who suffer. The system is designed to exploit those least able to defend themselves and least informed.
This was the intention at the Constitutional Convention in 1787, and the subsequent centuries have only allowed the system of self-serving elite control to be further refined at public expense. When resources are plentiful, the system can continue without people paying much attention, but now the amount of rapacious plundering has reached the point it cannot any longer be ignored. If it continues, the behavior in the U.S. (and in other places now as the result of U.S. modeling) will drive the world over a cliff to self-destruction. That’s where the project is leading, and judges have facilitated it as much as politicians and corporations.
Similarly, the AC21 Commission and its sponsors have been partisans in keeping the money train on its self-serving track, evading anything that might derail it. If justice would have been the primary objective, other methods would have been better. Clearly, the goal was to absolve Monsanto and its customers from liability, and transfer the liability to taxpayers as if that served a valid and honorable public objective.
Exploitation for elite benefit would be the only reason for proposing the insurance program, and all the members of the commission who went along with it or voted for it and did not file a vigorous dissent would be culpable in the effort to perpetrate a scam against farmers, taxpayer, and consumers. No other motivation can be easily understood. The only reason commission members would have gone along with it would be to cement in place their elitist bona fides as a way of currying favor with the empowered.
The insurance gives Monsanto's customers a way to escape liability and put the cost onto the farmer (growing non-transgenic crops) as the payer of the premium and the taxpayer as subsidizer of an insurance program that would not be affordable under normal insurance risk assessments. Because of the risk levels and the costs, the insurance program can only work if it is subsidized, but taxpayers would likely rebel unless they were kept in the dark about the realities of the program. They would not want to be paying a cost that should be paid by Monsanto or its customers as the causers of the trespass.
Before the insurance is put in place as the way to evade damage suits brought by farmers growing non-transgenic crops, everything will depend on the level of vigilance of these farmers in seeking contamination before the total amount of it in the tested quantity would get above 1%. If the principle is conceded that it had to have been less than one percent at one point in time even if it is more than that now, then most farmers might prefer filing a damage suit to paying for insurance. This would depend on the way the costs of the two approaches would break out.
If many damage claims are filed, and many could be, especially if the one percent threshold is broken, the pressure will increase for the insurance program to be put in place before the number of damage suits would become excessive, but that still might not work, especially if the taxpayers learn about the idea before it is established. If taxpayers remain oblivious about the fact they are being fleeced for the benefit of Monsanto and the other collaborators in the insurance scam, the project could advance, but only if farmers growing non-transgenic crops would prefer to buy insurance as a way to protect themselves and would not prefer to file a damage claim in the event their crops become transgenicly contaminated.
The choice is somewhat like the choice between the use of prophylactics and abortion in the event of an procreational accident. The insurance program is like offering women taxpayer-subsidized rape insurance to cover the costs of having to bear an unwanted child and to help them feel better about the continuing existence of the uncontrolled rapists.
The possibility of making a damage claim at least creates a countering incentive against the perverse existing organic incentive not to know about contamination in a crop. The result could be increased awareness about the amount of contamination actually existing—when that has not been known as long as the incentives worked to deter testing. This could have been an intention of the Appeals Court panel if they wanted to get an anti-Monsanto snowball rolling without making waves, but that would seem to be an unlikely motive. More likely, they would not have considered this possible impact. They were clever in doing as they did, but the most like conclusion is: they were too clever by at least half. They could have thought they were clever without understanding all the details in play.
Maybe the motives of the judges will be known if one of them someday writes a red-faced memoir, but in any case, the motives of the Appellate judges were different from those of Judge Buchwald. That much is clear. Judge Buchwald paved the path for Monsanto by pushing pesky farmers concerned about safe, healthful, and nutritious food forcefully out of the way as if their concerns should not matter and should be suppressed. In contrast, the Appeals Court gave them one percent of the needed redress.
Finding so many points of difference and disagreement behind the same basic dismissal finding would have been hard to imagine if it had not been seen. The Appeals Court judges did agree with Judge Buchwald’s conclusion even if they got there by a different route. Some might find the differences in the two decisions bizarre, but Judge Buchwald might be grateful the media have not shown much interest in the fine points of the Appeals Court decision. Otherwise, she might feel embarrassed or worse in reflecting on what she did, but if the case comes back to her, the opportunity will be presented for the issues to be revisited. Maybe the public interest will be better served on the second opportunity.
Editors would have likely been uninterested in the decision at least partly because they would have thought the public would have no appetite for the fine points of patent law even if they could determine the ability of the human race to live or die—or the ability of their grandchildren to live without potentially major genetic handicaps. A larger reason would have likely been derived from the wishful and arrogant cultural prejudice favoring man-made technology over the evolutionary natural wisdom established over preceding millennia before people started ignorantly, obliviously, and negligently eroding it.
If most people understood the issues at stake they probably would be interested, but they rely on the press and the media to tell them what the need to know about, and as a group editors and reporters may be among the cultural group least interested in maintaining a connection with the source of their food. The role of publishers in promoting the observed pattern of coverage needs to be known, too, but finding out would likely take a congressional investigation with the power of subpoena. That is unlikely to take place as long as the political system works as it does to benefit some and exploit others.
If discussion about an investigation was heard, it would likely be a way to extract political contributions from those concerned about it, and then the idea would be milked for as long as possible with a hope the people would not demand action. That is the way things work under a system designed to milk issues for money—maybe without ever solving them. At least, a built-in bias exists against constructive solutions, because no money is derived from that.
Money is derived from keeping controversies alive for as long as possible no matter who suffers. The fight over Obamacare is an example and so is the contention over immigration reform. The Republicans in the House would not have held over 40 votes to repeal the Affordable Healthcare Act if it was not working for them as a fund-raising strategy, but Democrats have also propelled fund-raising over their defense of the program. The goal is to create as many fights as possible and keep them going as long as possible. A problem quickly solved is a problem wasted. That is how the reasoning goes, and that favors the advocates with money and persistence.
Similarly, the biotech industry is an enormous cash cow for both political parties. If that were not true, Monsanto’s former chief lobbyist, Michael Taylor, would not be the food safety czar at the FDA and his ally Tom Vilsack would not be at the USDA. Their opponents do not have similar political, financial, and organizational leverage, so they are exploited and ignored. If they had any power, they could exercise it in the Congress and in state legislatures, and they would not need to try to pass ballot initiatives to make up for their weakness. In Washington mostly only organized money gets to talk, and that rule is required to maintain elite control over the system.
Even large constituency groups mostly only have power based on the money they can wield. Votes are not enough. This rule is laid out in the Constitution through the way the government was organized. That has not changed much, and it was a work of genius, especially in making the people believe the system really is a democracy because they get to vote every couple of years. Their beachhead was small when Congressional districts had 30,000 votes, and since then, size and the Gerrymander have made it smaller.
Apart from that, people are probably not interested because they do not yet understand why they need to be interested. Either that in the case of Monsanto’s activities or they have passively accepted the Doctrine of Substantial Equivalence without feeling the need to examine it. Once people would be able to find out what they do not yet know, they will not be able to be uninterested any longer and neither will their elected representatives if they want to get elected ever again.
Once elected representatives get interested because the views of an outraged public demand it, the judges will not be able to play expedient games, mock justice, or write decisions that are little more than a pro-corporate joke or a trick played on the people against their interests. These things are only possible when ignorance is systematically perpetrated for elite benefit. The system exists to serve the people running it as much as it does to serve the allied corporate interests. In this, things are much as they were in Nazi Germany. That was another example of a system where the elite cemented their power through alliance with corporate wealth and organizational prowess.
Now that two lower courts have made clear where they stand on the epic issue of whether the government should serve the needs of the people or the needs of the elite, we now get to see where the Supreme Court will come down on the issue. In various decisions in the past, they have come down on both sides, so the outcome in this case is not a foregone conclusion. It can be like a Crap game with nine dice, except that some of the dice are loaded to come up more reliably in one direction or the other.
The judicial failures on precedent, fact, justice, and morality in both lower court decisions leave much room for the Supreme Court to sustain our constitutional right to a day in court against Monsanto, but the justices have also acted in the past to protect the right of Monsanto to pursue its blatant transgenic profligacy against the public interest. Even when the Supreme Court required the USDA to prepare an environmental impact statement (EIS) in their Geertson Seed decision, the justices could not ensure the process would be more than a charade under existing law as understood at the USDA.
As the constraints are understood at the USDA, the patent owner has the right to perform or control all of the research going into the EIS. The Supreme Court could rule in favor of the law requiring the preparation of an EIS, but they were not able to require the existence of sensible, admirable, wise, and just interpretation of the law given the constraints understood by the USDA to prevent them from looking beyond plant pest issues.
Under USDA interpretation of the relevant law, officials believed it had no authority to perform independent, disinterested, objective investigation of the impacts. They felt at liberty to address only plant pest issues, but they have neglected those at least to the extent transgenic alfalfa would become a weed no longer easily subject to control. The resulting environmental issues would pose enough cost and consequence to constitute a plant pest issue, but those were ignored because the perception or interpretation of plant pest issues was too narrow. Either that or USDA-APHIS was unwilling to consider an interpretation more broad than the one they wanted to employ or had employed in the past.
Perhaps the interpretation was intentionally narrow, but it will likely continue to be narrow until a court somewhere provides a different interpretation of the law. The narrow interpretation made the resulting EIS prior to the public release of transgenic alfalfa risible to knowledgeable people. The better answer would not be a different interpretation of a limited law. It would be a better and more responsible law designed to protect the public above the continuing politically-enabled corporate profligacy.
The supporting contentions behind this point need to be developed in more detail. They are not trivial. That is a reason for filing our lawsuit, but it is also the reason some people do not want our lawsuit to be heard. The treat us like Luddites aiming to block progress, but we think their science is deceptive and deceitful and we have better science than they do.
We also believe the evidence will show we have better integrity and concern about health, safety, and wise nutrition than they do. “They” includes not just Monsanto but their many allies in government and elsewhere. “They” are viewed as an amoral juggernaut, and in standing up against them, we are a tiny minority. That is the reason the people need to look at the issues and decide who they think is right. This is especially needed when judges have been intent to block our access to the courts despite the asserted immediacy of the issues being raised.
The result of the government work on the alfalfa EIS at the USDA’s Animal and Plant Health Inspection Service (APHIS) would have been credible only to people unable to see through the charade. No doubt the government relied on ability to produce a product able to look like a real, reliable EIS without actually being one. Firms specializing in the preparation of shoddy impact statements are available to be hired, and they dishonor and discredit integrity as much as those who hire them. The EIS was written as if the government had been required by the Supreme Court to go through a hoop jumping exercise and no more.
Because of stories like this one, the Supreme Court needs a fast way to review performance following decisions like the Geertson Seed decision and determine if the follow-up is acceptable, honorable, and in the public interest. They need the power to put in jail the people who circumvent the intent of their decisions using artificially constrained interpretation of applicable law. Because the Executive branch of the government has the enforcement powers, a way is needed to hold them accountable when they thumb their nose at the courts and do not ask the Congress for the legislation needed to effectively perform the job the Justices have required of them infulfillment of the law making an EIS mandatory.
Both the court and the rest of the government are made to look absurd and dishonored when the required EIS ends up being a charade damaging to the intent of the applicable law. Unless people make the effort required of them in every way necessary U.S. democracy is discredited by the performance. Officials should not be entitled to do as they choose or interpret the law as they choose. Better is needed.
Without doubt, the negligence happens because of the power of corporate money in the U.S. political system, and this reality is the reason the United States is now less respected around the world than it has been in the past. Even the hope originally shown when President Obama was first elected has been dissipated through failure to live up to the initially perceived and hoped for promise. Many people invested hope in that promise, and they have not been able to see it fulfilled. Maybe it is not President Obama’s fault that he has not been able to fix all the problems, but from the point of view of others it might as well be. They want to see better, and they feel they should be entitled to see it even if they cannot do anything to help make things better.
When the U.S democratic ideal as well as the capitalist ideal are discredited by the observed behavior, the door is opened for others to do better and more admirably than the United States has done. The trouble is many others have been as easily or more easily corrupted than the United States and its institutions have been. Too easily they follow the abuses exemplified for them in the United States.
Instead of relying on admirable morality as was more often seen formerly in decades or centuries past, the United States has recently relied on the aggregated power of money and the power over policy money can buy. That may gain compliance and enable dominance through the imposition of U.S. will, at least over the short term, but it cannot win moral respect or admiration. A kind of amoral respect may be won for the power to dominate and control, but that is not the same as moral respect. With the imposition of willful domination comes tolerance and promotion of corporate-style amorality as if that should be the accepted and promoted national norm taking the place of honorable and admirable morality.
As the world grows smaller the more morality is need in relations between nations and cultures. The more distant people are from each other the more they can rely on interests to govern their relationships, but the closer they become and the more complex the inter-relationships become the less that is enough to provide effective resolution of issues or to stimulate admiration from the world-wide international public.
The Food and Drug Administration (FDA) has also been responsive to corporate amorality at high cost in continuing to insist on the “Doctrine of Substantial Equivalence” maintaining there is no material difference between transgenic and non-transgenic food even in the face of international evidence to the contrary. That is viewed as bull-headed and failing to promote wise public debate on the issues needing attention. This doctrine is the U.S. equivalent of the naked emperor’s clothes, and because of that, President Obama has cast himself as the naked emperor, except that many others in the government and now in the courts are playing that collective role with him. They may think they are given cover because others have set a precedent in the past, but that is like saying slavery should continue to exist because it existed in the past. Better is required.
Based on studies abroad as well as a growing number of findings in the United States, the Doctrine of Substantial Equivalence is increasingly being called into question, but the FDA resists making any changes or calling on the Congress to make them in the form of new regulatory legislation. Monsanto’s transgenic food is not equivalent if for no other reason than the Glyphosate herbicide residues it contains, but it is not equivalent for more reasons than that. The evidence on that we intend to present in court. We will present an alternative view because that evidence needs to be presented somewhere, and the ability to present it has so far been blocked in every other place that should have been available.
In this behavior, the FDA (and the White House with it) is like a fat lady who has ignored the fact that her underwear has lost its elastic. They have stepped out of their figurative transgenic underwear and kept on walking, but the evidence is on the street for everyone to see—if they want to look at it. The trouble is many people are not taking the time to look at it.
The majority of the U.S. people continue walking just like the naked emperor and the embarrassed lady—as if they have no reason to do anything to fix the problem. Even though transgenic crops are considered unique and different enough to be patented and even though the diverse transgenic gene stacks included in them make them into genuine genetic Frankenstein monsters without any ability to predict the way all the genes will interact contextually—and what will be caused as a result, the government and the people responsible for the failing pretend there is nothing to worry about. This is how it is in a nation where Alfred E. Newman has become patron saint and the President is his virtual embodiment.
None of the judges so far adjudicating our case have shown an ability or a willingness to contemplate the essentially important dimensions of the issues we are raising, or if they have, they have not wanted to open the door for examination of the technology on the merits. Both courts have tried to adjudicate narrowly, but in doing that, they birthed decisions looking as much like their own kind of Frankenstein monster as Monsanto’s transgenic crops. Perhaps, the judges are as cynical as many others in their acceptance and tolerance of amoral corporate domination over the public welfare, or perhaps they just want to decide issues narrowly and leave the political implications to others—even if they make themselves look ridiculous and absurd as appendages of the naked emperor.
Whatever the thinking and whomever all the people empowered to willfully ignore the issues are, the concern is no less important in the United States than the dominance by the Mafia in Sicily or domination of any other anti-democratic, plutocratic, oligarchic, or autocratic element in nations anywhere in the world. Accordingly, we wait for the chance to see where the Supreme Court decides to stand on the issues our lawsuit raises. Whatever happens, for good or ill, a national moral or amoral position will have been made known at least on the issues we are raising.
In the answer the Supreme Court provides may be seen the ability of the United States to differentiate itself from the observed autocratic, monopolistic, and oligopolistic totalitarianism in other nations where the controlling collaboration between government and corporations (or other productive institutions) has been imposed against the humane, healthful, responsible, and wisely understood needs of the people, the environment, and the helpless creatures of the ecosphere. This is the circumstance that allows the killing of the bees without doing anything about it; it is the circumstance that allows massive quantities of Monsanto’s Roundup into the waterways to have unstudied impact on the fertility of aquatic life or into the soil to have massive impact on the fertility of the soil and its ability to sequester carbon.
Make no mistake: Once the full array of damaging facts are understood, the damage and the threats will be horrendous, and they will be known to be continuing. On that the array of so far available and assembled evidence is clear. These matters will be illuminated in more detail if we get our day in court, and people will be able to make their own judgment about them, pragmatically and morally.
When Monsanto provided Agent Orange for use in Vietnam, it was the largest chemical warfare campaign in world history, affecting both U.S. soldiers and the Vietnamese in the hundreds of thousands, maybe now well over a million people altogether with serious birth defects and other health impacts. Yet, no war crime prosecution has been pursued over the behavior. The wealthy have long been recognized for their ability to buy their way out of various forms of liability and that is no less true of wealthy nations, but that does not diminish the shame or true culpability for those willing to see it.
I.G. Farben could not escape culpability for providing Zyklon B pesticide for use in the gas chambers at the six major death camps including Auschwitz-Birkenau and Treblinka where the majority of the deaths occurred. The company cannot have thought their chemicals were being used to kill insects, and even if they would claim they had no choice, they were part of the system. The same is true now in the United States. No one has been put in concentration camps though too many are in prison, but the impacts are now less significant just because they are chronic and not acute. Just because people are not dying in droves by tomorrow morning does not mean their health is not significantly impacted by the corporate behavior.
Life and health has been sacrificed in the United States through a collaboration between the government and its corporate allies, maybe just because it has the power to do it as a means to pursue profits—and campaign contributions. In the end, the alliance between the U.S. government and allied corporations may not prove to be that much different in net health and human welfare impact than the collaboration between the government and corporations in Nazi Germany, but then maybe the U.S. results will be much worse. That question will certainly be asked, and it needs to be.
The full evidence on the impacts needs to be collected, and it will be—eventually. The truth cannot be permanently suppressed, so it is only a question of how long it will be before the effort starts—and by what methods it is advanced. The totality of the impacts may have already have been worse than anyone has imagined, maybe worse than the Holocaust in their totality if not the horrendous visible immediacy of the impacts.
Without doubt, many more people have been impacted even if less terminally over the short-term, and that needs to be exposed. Once all the impacts are objectively and fully tallied, the numbers will be counted. One day comparative accounting may be possible, and one question will be whether the long-term, multi-generational health impacts will be any better than relatively instantaneous death in a gas chamber that at least did not condemn succeeding generations of people to continuing decades of genetically-corrupted suffering.
No vote of the people was ever taken on the use of Agent Orange, but one was needed, and one is needed now on Monsanto’s agricultural system and the damage it is doing. If we cannot get a day in court to let both sides state their arguments, a national vote on the issue might be an alternative, if it would be possible. That would at least put the moral issues squarely before the people of the nation in the wake of the official failure of moral responsibility.
Suppose we were to conduct a national campaign on the subject with time for both sides to present the arguments publicly before the national vote is taken, maybe on Election Day 2014. Under the rules, Monsanto should be required to provide the funding for presentation of the arguments by both sides, because they are the corporate people wanting to promote their technology. They should be allowed to spend no more than they provide to their opponents to spend. These would be logical ground-rules in a fair-minded culture where truthful outcomes matter, but the United States is not that kind of culture. Now, the question is whether or not it wants to become something better than it is.
Examination of the issues directly by the people could be understood as necessary because no hearing on the merits has been possible within the any branch of the government so far. When the government, including the courts, has neglected and ignored its duty to the public, something needs to be done instead. A direct public vote is an alternative proposal in the face of a dysfunctional government and official negligence.
If such a remedy is required to do what should have been common sense two decades ago, a constitutional amendment is proposed to allow issues to be taken directly to the people when their needs have been evaded and action has been delayed by the government as a result of corporate subservience and a political desire to milk issues for years before they are addressed. When elected representatives fail to do their job, the people need a way to fix the problem or do something else to create policy directly
In Brazil as of July 2013, the national Senate reduced from one million to 500,000 the number of voters required to sign a citizen petition to allow direct introduction of bills and resolutions into the national legislature. A campaign to gain that many signatures would likely garner enough publicity to also win similar publicity for the vote on the matter being proposed. The feet of the legislators would be put to the fire. A vote on the change made by the Brazilian Senate has been awaited in the Brazilian House.
Maybe the United States needs a provision like this if it could be used to produce needed action in the face of foot-dragging corporate subservience, and maybe the citizen-supported bills should be entitled to an up or down vote after a reasonable period of time with no threat of a filibuster. In Brazil, an amendment to the Constitution did not seem to be required to set up the program, but maybe the introduction of such an idea would in the United States. The U.S. system may be more fully designed to constrain democracy and protect the interests of plutocrats and oligarchs.
Apart from the possible assertion of direct democracy at the national level, the big issue in the United States is the large number of non-competitive, gerrymandered Congressional seats. As long as members of Congress have no fear of being thrown out of their seat when they vote against measures that have broad national support, it might not matter how many resolutions the people of the nation might file for consideration. When most of the Congress is not responsive to a national majority, living in regressive enclaves protecting both the plutocracy and the oligarchy, they might ignore with impunity anything against the interests of those corporate constituents they consider most important because the money they can provide to the electoral effort.
A way is also needed to prosecute political leaders and other officials for their negligence and irresponsibility, but that would not be enough when action needs to be taken to protect the public interest and no more delay can be tolerated. Maybe the Pillory and the Stocks should be put to use on the national Mall or on the sidewalk along Pennsylvania Avenue from the Capitol to the White House, but then, maybe that would be too humane if the punishment should be commensurate with the offense.
If so decided, the use of this punishment could be reserved for those committing political crimes, and maybe a national vote of perhaps a two-thirds majority would be needed to convict and invoke this special form of punishment. That would make it a democratic prerogative unavailable to the whimsy of biased courts or impeachment trials. But then some means would be needed to prevent the project from being subject to mass hysteria. That might be accomplished by requiring two separate votes with a period of months in between them. As long as no sactions exist against the kind of misbehavior now being seen, the admirability of the nation may not be restorable. As long as unaccountable impunity is able to persist people will suffer as a result. That is clear.
Unfortunately, nothing yet guarantees that even two-thirds of the people would deliver a wise and honorable verdict protecting the public interest; that is known because more than that number were whipped up to support the invasion of Iraq in 2003 under a timeline designed to fit President Bush’s reelection campaign schedule. That was not a proud performance, and in view of it, the likelihood of better cannot be guaranteed, but depending on the weather when the punishment is served, a national trial on television followed by a pair of national votes with a period of reflection in between them might at least relieve some of the pressure on overworked judges, too busy to give serious issues their full attention. The people could not likely be any more dysfunctional, unreasonable, idealogical, partisan, and biased than members of the Congress in moving forward a bill of impeachment, and that could be better than throwing the miscreants to the lions.