Environmental Groups Support Peach Orchard in Eighth Circuit Dicamba Lawsuit

Last week the various environmental and farming groups as amicus curiae filed a brief in favor of Bader Farms Inc. and its owners who claimed that BASF and Monsanto are at fault for their 1,000 acre peach orchard being destroyed by dicamba, a herbicide produced by the defendants, which was sprayed on a neighboring farm.

The brief was filed last week on Wednesday in the Eighth Circuit and is currently under seal but available via the Center for Food Safety.  The National Family Farms Coalition, Center for Biological Diversity, Pesticide Action Network, Center for Food Safety, and Save Our Crops Coalition argued that the defendants dicamba-resistant crop system caused the damage to the orchard, and contested allegations from the defendants and appellants that there is adequate federal regulation.

“Appellants’ assertion that the dicamba-resistant system did not cause the substantial damage to Bader Farms is belied by the facts and science. Worse, the Baders’ story is unfortunately a microcosm of a much broader story, the unprecedented drift damage caused by Appellants’ defective system, not only to Bader Farms, but to millions of acres of crops and trees across the country. This damaging system offers no real public benefit, only externalized costs borne by other farmers and the environment. The manufacturers and regulators have both utterly failed to protect farmers from these foreseeable, indeed, known dangers,” the brief said.

The brief supported the district court’s verdict, awarding $75 million which was reduced from the $265 million awarded by the jury. The Center for Food Safety said in a brief that drift damage from herbicides sprayed on neighboring Dicamba-resistant soybean crops continued despite “supposedly less drift-prone dicamba formulations” produced by the defendants in 2017.

“Internal company documents cited by the district court showed the two companies not only projected that their dicamba crop system would cause thousands of drift damage episodes, but that they exploited the threat of damage to persuade soybean farmers not otherwise interested in Monsanto’s seeds to purchase them anyway, for ‘protection from your neighbor’—that is, to preemptively avoid and mitigate dicamba drift injury from neighbors’ use of the crop system,” the Center for Food Safety said.

The brief presented evidence which the companies purport shows that the dicamba crop system is the cause of the damages to Bader Farms, and is harming American Agriculture in general. Many of the same groups are also involved in legal actions against the registration of dicamba herbicides.

The Missouri Association of Trial Attorneys also filed a brief on the same day, which is under seal. The defendants, BASF Corporation and Monsanto Company, initially had a brief due, but asked the court to extend the time they had to file it.  Their brief is now due June 16. Bader Farms filed an answer brief earlier this month.

Bader Farms and Bill Bader are represented by Randles and Splittgerber. The defendants are represented by Hogan Lovells, Sidley Austin LLP, Thompson Coburn, Bryan Cave Leighton Paisner, Hepler Broom, and Faegre Drinker Biddle & Reath.