BOARD RECOMMENDS DISMISSAL OF GMO SUIT

BISMARCK, ND - A state board says it has not found enough evidence to support a lawsuit against a Cass County, N.D., farm accused of violating a company's patent by replanting genetically engineered soybean seeds without authorization.

Nelson Farm, which is operated by Greg, Roger and Rodney Nelson near Amenia, is being sued in federal court in Missouri by St. Louis-based Monsanto, which develops the seeds.

"The Nelsons presented substantial evidence suggesting that they did not save any of their seed from an earlier year and replant it," reported Agriculture Commissioner Roger Johnson after the April 19 vote by the North Dakota Seed Arbitration Board.

Nonbinding Recommendation

The Nelsons went to the board in January for a recommendation in the dispute.  The board based its findings ona hearing held in March.  Its recommendation is nonbinding, but could be used as evidence in court.

"We knew all along we hadn't done anything wrong," says Roger Nelson, who raises about 8,600 acres of wheat and soybeans in the Amenia, N.D., area with his sons.

Lori Fisher, a spokeswoman for Monsanto, says the company did not attend the March hearing because it did not think a state seed arbitration panel was the proper venue to talk about patent infringement.

"Monsanto has been and continues to be ready to settle this entire matter with the Nelsons," she says. "We've offered time and again to sit down with them privately and resolve this, and that hasn't happened yet."

The company contends the Nelsons violated a contract by planting seed in 1999 that had been saved from the previous year. The genetically engineered soybeans are immune to Monsanto's Roundup herbicide.

Investigation

The company sent an investigator to the farm in July 1999, after the company received an anonymous telephone call. The investigator called back several days later to tell Greg Nelson there had been no irregularities.

But in November 1999, the Nelsons got a call from an Indianapolis firm that represented Monsanto. The company wanted to inspect their fields again, and two more investigators arrived two days later.

Last July, an attorney wrote that a sampling team had found genetically altered soybeans in some of the fields the Nelsons say were conventional beans and that lab tests proved it.

Johnson says the investigation was done in a very unscientific, haphazard fashion.

"The evidence indicated that they very likely sampled the wrong fields, fields that weren't even the Nelsons," Johnson says.

Fisher says the investigators sampled the fields the Nelsons says were theirs.

"We were following the information that they gave us on which fields to sample," Fisher says.

When the two investigators came out, Roger Nelson says his son offered to take them to the fields.

"They said no. They were professionals. They could handle it, so we didn't accompany either one or weren't invited to," Roger Nelson says.

Johnson says the company's legal action was "overbearing" and "unprofessional," and he says the crop did not yield well in the first place.

"They'd be fools to save that seed and replant it," he says.

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