As described briefly in my last post, Secretary of Agriculture Tom Vilsack is trying to find a regulatory solution to the plague of lawsuits regarding coexistence of biotech and organic. While there are some positive aspects to the proposed partial deregulation, there are better ways to ensure that all farmers get to grow what they want.
First, there already exists case law to solve problems between individual farmers. The two current big lawsuits (sugar beets,alfalfa) aren’t about individual farmers, though, they are carefully orchestrated efforts by special interest groups. Anyway, as I understand it, if two neighboring farmers can’t work out things on their own, the case law is clear. Hopefully if I have it wrong someone with relevant expertise will stop by and comment.
When things move from one person’s land to another person’s land, that is trespassing. Every person has a responsibility to keep their things to themselves, using reasonable methods to control their things. Every person also has a responsibility to protect their things from harm, using reasonable methods to protect anything that might be harmed by outside forces (like things from your neighbor moving into the area).
You thought your neighbor was difficult!
Let’s consider an example far, far from agriculture. Let’s say that John is a stunt man that specializes in intense fiery scenes. He has developed a company that does all kinds of neat stunts on his multi acre property, things like flying cars on fire. Next door, Jane has her own company. She makes speciality blanks for firearms, also for the movie industry. She has all sorts of interesting blanks, including red and green tracers that can really light up a scene.
One day, John’s fire gets a little out of control. Some tongues of flame leap over the property line and set a shed on Jane’s property on fire. The shed explodes, causing damage to both Jane’s and John’s property. They end up in court, where Jane is suing for the price of a new shed and to replace all the gunpower stored in there.
Who was at fault? Obviously, John’s fire trespassed onto Jane’s land so he should be held liable. However, perhaps Jane didn’t safeguard her gunpowder shed adequately . The judge would consider the reasonable precautions that should have been taken by John to control the fire and by Jane to protect her gunpowder, and look at what precautions were actually taken, if any. If it turns out that John took every reasonable precaution and Jane didn’t, then the judge would rule that John only owes a portion of the cost of the shed and gunpowder. If it turns out that Jane took every reasonable precaution and John was lax, then the judge would rule that John owes Jane for the full cost of the shed and the gunpowder inside.
The thing is, there are two people involved here. Neither John nor Jane can on their own 100% prevent any trespass. If both of them take reasonable precautions, though, they can both avoid trespass and avoid going to court. What they should have done way before the incident is take time to discuss precautions.
Coexistence takes conversation
To get back to farming, just like John and Jane, two neighboring farmers must both take reasonable precautions to prevent trespass of their property (including pollen and chemicals) and take reasonable precautions to prevent trespass onto their property, especially if something on their property could be damaged by trespass. Obviously, when it comes to pollen, a fence isn’t going to cut it. There are many things that farmers can do cooperatively to avoid getting to that courtroom that don’t require the USDA to tell them where, when, and what they can plant.
The exact methods that would make coexistence of organic and biotech (and non-biotech conventional) lawsuit free will vary by crop and location. Methods that are needed for one crop are unnecessary for others. Methods that work in one situation/location won’t work in others. Neighbors have to get together and discuss how to solve the problem of coexistence creatively. They have to enter into the conversation knowing that any trespass will harm both of them. They have to earnestly work together to find mutual solutions.Will this eliminate lawsuits? Of course not. But it would definitely help in the majority of situations.
Before I go any further, I should mention that farmers are already taking the time to have conversations about coexistence. Many are already finding creative solutions that allow both to farm in the ways they wish and to be profitable. Here’s one example by Pamela Ronald:
Raoul discusses another example in our book Tomorrow’s Table. On his organic farm, they were growing beautiful sunflowers to sell for bouquets at the farmers market. Unfortunately, the pollen from the organic crop was contaminating fields of conventional sunflowers that were being grown for seed. The pollen flow from the organic crop rendered the seed crop impure and therefor reduced the value of the seed crop.
This is America so you would expect that the conventional farmer would sue the organic farmer. But no! The farmers talked to each other and came up with a solution. The conventional growers gave the organic grower some sterile sunflower seeds. Problem solved. The organic growers here in the Valley now grow sterile sunflowers for their bouquets.
What the USDA can do to help
Instead of adding one-size-fits-all regulations that restrict farmers’ ability to make choices, the USDA can encourage more of these conversations to take place. In many cases, farmers can find their own solutions, as the sunflower farmers above did. But sometimes situations can be complicated and could use the expertise of an agronomist. The USDA should increase funding for agricultural extension and make sure to hire extension agents who would be able to mediate discussions about coexistence and provide ideas on how to reduce trespass.
There are so many ways to reduce pollen flow, some easy, some difficult. Distance is pretty easy; one or both neighbors could simply grow a different crop as a buffer. Perhaps, in some situations, it would be appropriate for a biotech farmer to grow their refuge along their property line with an organic neighbor. Perhaps the border between the farms could be set aside as wildlife habitat under CRP. A little more difficult is using time as the barrier, offsetting planting dates so that one crop will have finished shedding pollen before the neighbor’s plants become receptive to pollen. The timing has to be exactly right, which could be where an extension agent would come in handy.
In the case of alfalfa, which after all is what started this whole conversation about coexistence, farmers can harvest their alfalfa before the flowers become receptive to pollen. Penn State has a great resource page about when to harvest alfalfa. Of course, that’s not an option for farmers growing alfalfa for seed, but keeping seed pure can be pretty complex even when biotech isn’t involved, already requiring special distances and barriers to stray pollen.
The USDA should focus on sound science and use the expertise of agronomists to help encourage coexistence. And the organic industry groups need to join as helpful forces, cooperating with farmers and extension agents to help find solutions to coexistence in specific situations. Blanket regulations can be useful in some situations, but not here. I hope that Secretary Vilsack and others working on coexistence come to realize that.