July 5, 2001
by Alan Guebert
In his 37-year career, Fargo, ND attorney Mark Fraase says he has never witnessed such bare-knuckle legal brawling as is being practiced by Monsanto Co. against his farming clients, the Nelson family of Amenia, ND.
Fraase has a theory on Monsanto’s tough strategy: “the Nelsons feel Monsanto has singled them out as an example so farmers here will fear Monsanto. I can say with absolute certainty. There isn’t one chance in a million that the Nelsons did one thing wrong.”
Not according to biotech behemoth Monsanto, the St. Louis firm that has staked its future and farmers’ future on genetically modified seed. In an October 2000 lawsuit filed in Missouri federal court, Monsanto charges father Roger and sons Rodney and Greg Nelson with two company’s Roundup Ready technology, one count of “unjust enrichment” and one count of “conversion.”
The soybean battle began in July 1999, explains Rodney, when a fraud examiner arrived at the Nelsons’ 8,000-acre wheat, soybean and sugar beet farm in the Red River Valley. The examiner related he was following up on an allegation that the Nelsons had saved Roundup soybeans from their 1998 crop and planted them in 1999.
Rodney, thinking this was just some mistake, quickly shared 1999 crop records with the examiner, including field maps and seed and chemical receipts, which he says proves his family legally purchased and planted seed for about 1,500 acres of Roundup beans in 1999. The Nelsons also grew about 2,300 acres of conventional beans, some with bin-run seed.
Within a week, the examiner telephoned to say things looked good. In November 1999, two Indianapolis-based examiners arrived to take field samples to verify the Nelsons’ claims.
“I told them I’d take them to all our fields and help them pull the samples,” says Rodney, “since the fields we farm are spread over 20 miles, east-to-west, north-to-south.”
When he persisted in offering assistance, Rodney said the examiners firmly said they’d do it themselves.
That’s the last the Nelsons heard until July 2000, when a letter from Monsanto informed them that “there is a large discrepancy between the number of acres that you could have planted with the quantity of seed that is indicated by the sales receipts that we have.”
Rodney was stunned. In essence, he, his father and brother were alleged thieves despite their clear and certain belief they possessed irrefutable proof they had done nothing wrong. From there, the fight tumbled into acrimony.
“The only information we ever got from Monsanto,” explains attorney Fraase, “was about 30 GPS coordinates they say corresponded with soybean samples taken from the Nelsons’ fields in 1999. The farmers hired a third party, to go to those GPS coordinates and maybe 15 were actually in fields where the Nelsons grew soybeans in 1999, about 10 were in neighbors’ fields or ditches and two or three were more than four miles from any field of the Nelsons.”
In January, the Nelsons requested a hearing before the North Dakota Seed Arbitration Board to lay out their case against Monsanto. The hearing was held March 27, but Monsanto, citing legal issues, declined to participate.
In its April 23 report on the hearing, the Seed Board noted, “The greater weight of evidence shows that Nelson Farm does not owe Monsanto any damages for patent infringement, conversion, or unjust enrichment because the evidence presented shows that none of those occurred.”
And, even though Monsanto never attended the hearing, according to North Dakota Assistant Attorney General Paul Germolus, the company subsequently subpoenaed “me, the five members of the Seed Board, the administrative law judge who presided at the hearing and all records generated at the hearing.”
Monsanto has asked to see all the Nelsons’ recent tax returns and lawyer Fraase was notified that Monsanto wants to see “all correspondence I’ve had since 1996 with attorneys that have had legal dealings with Monsanto. It seems ludicrous to me,” Fraase says, “because how do I know what business these attorneys have had with Monsanto?”
Rodney Nelson says his family has spent “probably $200,000 defending ourselves and we’re not even in court yet. If Monsanto is trying to starve us out with all this lowball legal stuff, they picked the wrong people. We did nothing illegal or wrong and we’re not backing down.”