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12 CapitalPress.com June 24, 2016 GMO CONTINUED from Page 1 According to the 9th Cir- cuit, other concerns about po- tential economic or environ- mental impacts cannot stop the agency from deregulating a genetically modiied organ- ism, or GMO, if it doesn’t pose a plant pest risk. At the time, the 9th Cir- cuit’s ruling was a serious blow to critics of biotech- nology, who were trying to block the commercialization of GMO alfalfa because of the alleged hazards of cross-polli- nation with conventional and organic varieties. Since then, however, several counties in Hawaii have adopted restrictions on GMOs, attempting to address worries over which USDA lacks authority. The counties of Hawaii and Maui banned most GMOs, while Kauai County imposed mandatory reporting of where such crops are grown. Federal judges have over- turned all three ordinances, but now the validity of those rulings is being challenged before the 9th Circuit, which held oral arguments in these cases on June 15. How these disputes are re- solved could affect GMO re- strictions in the nine Western states under the 9th Circuit’s Dan Wheat/Capital Press ile Workers bag tassels of GMO corn to collect pollen in a Syngenta test plot about three miles northwest of Lihue on the island of Kauai. The pollen is used to pollinate another plot of corn genetically modiied for pest and drought resistance. The 9th U.S. Circuit Court of Appeals is hearing three cases from Hawaii on the regulation of GMO crops. jurisdiction, including Ore- gon, Washington and Califor- nia, where several counties have adopted GMO bans. GMO critics are now try- ing to use their previous de- feat to justify state and local regulations of genetically en- gineered crops. Since the USDA’s “hands were tied” by its limited pow- er over biotechnology, it only makes sense for local gov- ernments to step in with their own rules to protect organic and conventional growers, said George Kimbrell, exec- utive director of the Center for Food Safety, a nonproit involved in prominent GMO battles. A federal judge ruled last year that Maui’s GMO ban is pre-empted by federal law, but Kimbrell argued that rea- soning doesn’t make sense. It’s implausible that the Plant Protection Act, under which the USDA’s authori- ty is restricted to plant pests, would prevent states and counties from addressing con- cerns that the federal govern- ment cannot, Kimbrell said. Threats from increased spraying of herbicide-resis- tant biotech crops, for exam- ple, are beyond the scope of USDA’s authority but within the county’s police power, said Bernie Bays, an attorney representing supporters of Maui County’s ordinance. “Our job is to regulate the farms and farm practices in Bentgrass CONTINUED from Page 1 “I think Scotts should be lia- ble for what they did but they are pretty much walking away from it,” said Malheur County farmer Rod Frahm. “Personally, I think since they created the problem, they should take care of it.” Scotts ‘committed’ Molly Jennings, director of public affairs for Scotts, told Capital Press in an email that claims the company is walking away from its responsibility are unfounded. “We are committed, and have been, to a collabora- tive, long-term management plan with local landowners, ir- rigation managers and others.” In an email response, USDA Public Affairs Specialist Andre Bell also rejected the notion that the agreement allows Scotts to walk away from the problem. Scotts, in conjunction with Monsanto Corp., was devel- oping the genetically modiied creeping bentgrass to be resis- tant to glyphosate, the active in- gredient in Roundup, Monsan- to’s popular weed killer. But the grass escaped from ield trials in 2003 due to what USDA describes as a “wind event” and took root in Malheur and Jefferson counties in Ore- gon. According to Jennings, two wind storms resulted in seed heads scattering from the ield trial control area in August 2003. The plants were identiied outside the control area in 2004. Scotts has been surveying for and controlling the plant for sev- eral years. According to Scotts, the company identiied 424 plants in Malheur County and 441 plants in Jefferson County during spring spraying this year. A small number of the plants were found in Canyon County, Idaho, which is adjacent to Mal- heur County. 10-year agreement During a March meeting with a top USDA oficial and Scotts representatives, some lo- cal farmers and irrigation district representatives challenged the terms of the agreement, reached in September. The agreement requires Scotts to continue to survey for Sean Ellis/Capital Press Malheur County farmer Jerry Erstrom points out a genetically engineered creeping bentgrass plant June 14 in an onion ield just south of Ontario, Ore. The grass, which was genetically modiied by Scotts Miracle-Gro Co. to resist the Roundup weed killer, escaped from ield trials in 2003 and has taken root in Malheur and Jefferson counties in Oregon and part of Canyon County in Idaho. and try to eradicate the bent- grass in 2016. In years 2 and 3, the company must provide technical assistance to affected farmers and irrigation districts and provide incentives for the adoption of best management practices to control the grass. The company will also con- duct outreach and education programs. In years 4 through 10, Scotts will pull back a little while con- tinuing to analyze the situation, educate growers and provide technical assistance, Sid Abel, assistant deputy director of US- DA’s Biotechnology Regulatory Services, said during the March meeting. Scotts will continue to work Water CONTINUED from Page 1 The ruling is signiicant for other farmers because it undermines the “plowing exemption” to Clean Water Act regulations, said Tony Francois, an attorney with the Paciic Legal Foundation, a property-rights group that represents Duarte. The U.S. Army Corps of Engi- neers claims the tillage operation on Duarte’s property doesn’t qualify as plowing because it “relocated earth- en material into ridges,” unlawfully raising the elevation of the soil in the wetlands with “ill material.” Under this interpretation, the plowing exemption to the Clean Wa- with Oregon State University researchers to try to identify herbicides that can effectively manage the grass, especially in aquatic and semi-aquatic envi- ronments. USDA “essentially let them off the hook,” said Erstrom. “What Scotts is doing to Mal- heur County is not right.” The plant proliferates on and in irrigation ditches and is clog- ging and changing the low of some ditches, said Erstrom and Frahm, who is on his local ditch board. “The plant does extreme- ly well on ditch banks,” said Jay Chamberlin, manager of the Owyhee Irrigation District, which provides irrigation water ter Act would essentially be rendered meaningless, said Francois. “There’s no way you can plow without displacing soil from the track of the plow into a little ridge next to it,” he said. Duarte has asked U.S. District Judge Kimberly Mueller to recon- sider her ruling, with a hearing on his motion scheduled for July 1 in Sacramento. If the judge refuses to reconsider the ruling, Duarte will request per- mission to challenge it before the 9th U.S. Circuit Court of Appeals, said Francois. “She didn’t really look at our evi- dence that all Duarte did was plow,” he said. In her recent decision, Mueller agreed with the federal government to 118,000 acres in Eastern Or- egon and part of Southwestern Idaho. “Once it gets in there, it can contaminate the whole sys- tem.” Because creeping bentgrass is genetically modiied, if traces of it end up in alfalfa hay or oth- er crops, they can be rejected by overseas customers that don’t ac- cept GMO crops, Erstrom said. $100 bounty Between the plant’s impact on irrigation ditches and its possible impact on foreign ship- ments, “The potential is there for disaster,” he said. Malheur County declared the plant a “Class A” noxious weed two months ago, which that by moving soil horizontally across the wetland portions of his ield, Duarte unlawfully redeposit- ed it into the “waters of the United States” and thereby “discharged a pollutant.” Duarte didn’t qualify for the plowing exemption because he was converting a pasture that had long been used for grazing to grow wheat, which meant that tillage wasn’t an “established and ongoing” farm ac- tivity on the property, according to Mueller. Such an overly narrow under- standing of the Clean Water Act’s plowing exemption has “no basis” in the actual statute, which wasn’t in- tended to stop farmers from chang- ing what’s grown in ields that in- clude wetlands, said Francois. Maui County,” Bays said. The local GMO ban isn’t pre-empted by federal law be- cause it doesn’t deal with plant pests, which are solely the province of USDA, he said. Biotech developers count- er that GMO prohibitions are nonetheless federally pre-empted because the Plant Protection Act is meant to es- tablish national uniformity for such crops. States and counties are not allowed to “frustrate federal objectives” created by Con- gress, said Richard Bress, an attorney representing Mon- santo and other biotech devel- opers. The USDA has established a “science-based scheme” to enable commerce in plants that are determined not to pose a credible danger to ag- riculture, Bress said. “The counties are saying here they don’t buy it,” and have enacted restrictions that undermine the federal regula- tory system, he said. The question of feder- al pre-emption has the most potential to inluence GMO policies in states and coun- ties across the West, but the 9th Circuit is wrestling with several legal issues that may determine the outcome of Ha- waiian GMO cases. The question of federal pre-emption is complicated by the fact that two differ- ent judges ruled on the three county ordinances. Maui County’s GMO ban was held to be entirely pre-empted by federal law, but the ruling that invalidated Hawaii County’s ordinance was more nuanced. In that case, another judge found that its GMO ban was only pre-empted by federal law in regard to plants that were regulated by USDA. In other words, federal law prevented Hawaii County from restricting GMOs that were still being ield-tested under USDA’s supervision, but the ordinance could pro- hibit crops that the agency had commercialized. The requirement to report crop types and locations in Kauai County, on the other hand, was held to be free of conlicts with federal law. In all three cases, though, the ordinances were found to be pre-empted by Hawaii’s agricultural statutes, regard- less of federal law. It is possible for the 9th Circuit to simply rule that the ordinances are pre-empted by state law and not decide the federal issues. However, that would leave an unresolved conlict be- tween two federal court rul- ings, inviting further litigation and confusion, so it’s unclear if the 9th Circuit would want to kick that can down the road. means it’s mandatory for any- one who inds it on his property to control it. Erstrom said there is now a $100 bounty on any of the bentgrass found in areas where it hasn’t already been detected, such as north of Ontario or along the Snake River. Jennings said glufosinate is the primary tool used by the contractor hired to control the grass but other herbicides work as well. A list of them can be found online at http://scottsmir- aclegro.com/gtcbanswers/ Abel said Scotts has agreed never to sell or distribute the grass variety and USDA has documented that all of the commercial grade seed stock has been destroyed, although Scotts was allowed to keep re- search-grade materials. At the same time, Scotts has petitioned USDA to deregulate the genetically engineered grass, a move that Erstrom suspects is intended to allow the company to wash its hands of the issue. Jennings, the director of public affairs for Scotts, said the bentgrass meets all of the scien- tiic and environmental criteria for deregulation and “we be- lieve this is an important step to upholding the gold standard set by the USDA as it relates to the review and approval of all fu- ture plants and crops produced through genetic modiication.” Deregulation would also “provide more lexibility in long-term management of this plant,” she added. “If this bent- grass is deregulated, as we think it should be, this will in no way change our commitment to the current management plan for the next decade.” Jennings said the cost of con- trolling the bentgrass is modest and involves mostly the cost of the herbicide used to kill it. She said the company is evaluating the possibility of sub- sidizing or donating herbicides that manage creeping bentgrass. “We feel that the plan we have developed will best ad- dress the needs of growers and irrigation managers, but we are open to working with stakehold- ers to develop the best possible approach,” she said. Abel, of USDA’s Biotech- nology Regulatory Services, said the grass will never be erad- icated in the affected counties, but it can be controlled. Erstrom said his concern is that once Scotts stops active- ly controlling the plant, it will make a comeback and spread rapidly. The onus will fall on grow- ers and irrigation districts that lack the expertise and inancial means to control it, he said. Tillage operations would only be prohibited under the Clean Wa- ter Act if they were performed for a non-farming use, such as preparing a ield for building construction, he said. The idea that growers must obtain a Clean Water Act permit to switch a ield from grazing to growing crops or planting an orchard is based on a misinterpretation of the law by the U.S. Army Corps of Engineers, he said. “They’re basically saying if you want to deviate from what you’ve been doing, you need our permis- sion,” Francois said. Duarte’s problems with the U.S. Army Corps of Engineers began in 2012, when the agency ordered him to “cease and desist” tillage in the State’s position In a Feb. 17 letter to Scotts oficials, Oregon Department of Agriculture Director Katy Coba said that according to the agreement, “after three years all responsibility for (glypho- sate-tolerant creeping bentgrass) management, including inan- cial, will fall on growers, irriga- tion managers and other affected parties whereas Scotts will only be responsible for maintaining a website.” “ODA is concerned that without Scotts’ leadership and inancial support, that research efforts and coordinated control efforts will eventually subside and GTCB population levels will escalate and the area of infestation will expand,” Coba stated. While ODA and some farm- ers such as Frahm and Erstrom have concerns about Scotts’ fu- ture role in controlling the grass, others say the company has done a good job so far of con- trolling it. At the same time, they ad- mit they are concerned about the terms of the agreement with USDA. “I’m very happy with what Scotts has done at this point,” said Bruce Corn, an Eastern Oregon farmer and member of the Owyhee Irrigation District board of directors. “The concern is that at some point, they would walk away from taking the con- trol measures they are now and (the plant) will come back.” In the early years after the grass was irst discovered in Malheur County, it was every- where and there were blankets of it in some places, Chamber- lin, the Owyhee Irrigation Dis- trict manager, said. But the local contractor hired by Scotts to control it has done a good job of knocking it way back, he added. “So far, they have done what they said they would do. I hope that continues,” he said about Scotts. “But the language in the agreement with USDA is very concerning.” ield because it contained temporary “vernal pools.” He iled a lawsuit against the agency claiming it had violated his due process rights — an argument that was rejected by the judge — to which the Corps responded with a counterclaim alleging the Clean Wa- ter Act violation. Because the judge hasn’t yet de- cided on a punishment for Duarte, the litigation isn’t inished, and he can’t appeal to the 9th Circuit with- out her permission. Such an “interlocutory appeal” would be warranted in this case because it has the potential to end the lawsuit without having to go through the “remedies” phase, ac- cording to a court document iled by Duarte.
