Another genetically modified showdown in U.S. District Court

The matter of Organic Seed Growers & Trade Association, et al. v. Monsanto, filed in the United States District Court for the Southern District of New York (Manhattan) on 29 March 2011, should get interesting as a jury has been demanded to hear arguments in part predicated on the assertion that Monsanto & Co do not hold valid patents on genetically modified seed.

Opening remarks in the application:

1. Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food.1 Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. History has already shown this, as soon after transgenic seed for canola was introduced, organic canola became virtually extinct as a result of transgenic seed contamination. Organic corn, soybean, cotton, sugar beet and alfalfa now face the same fate, as transgenic seed has been released for each of those crops, too. And transgenic seed is being developed for many other crops, thus putting the future of all food, and indeed all agriculture, at stake.

2. Plaintiffs in this matter represent farmers and seed businesses who do not want to use or sell transgenic seed. Plaintiffs are largely organic farmers and organic seed businesses, but also include nonorganic farmers who nonetheless wish to farm without transgenic seed. Plaintiffs are increasingly being threatened by transgenic seed contamination despite using their best efforts to avoid it. This causes Plaintiffs to fear that, if they do indeed become contaminated by transgenic seed, which may very well be inevitable given the proliferation of transgenic seed today, they could quite perversely also be accused of patent infringement by the company responsible for the transgenic seed that contaminates them. Thus, Plaintiffs bring this action to protect themselves from ever being accused of infringing patents on transgenic seed.

3. Monsanto is a chemical company that was previously responsible for introducing to the world Agent Orange, DDT, PCB's and other toxins. Monsanto is now the world's leading proponent of transgenic seed and holds many patents relating thereto that it has aggressively asserted against literally hundreds of farmers, including those farmers who became contaminated by Monsanto's transgenic seed through no fault of their own. Public awareness of Monsanto's patent assertion activities is high and it contributes mightily to Plaintiffs' fears that they, too, could most assuredly be accused of patent infringement in the near future if and when they become contaminated by Monsanto's transgenic seed.

4. Through this action, Plaintiffs ask the Court to declare that, should they ever be contaminated by Monsanto's transgenic seed, they need not fear being sued for patent infringement. As set forth below, there are several legal bases for this declaration, the principal one of which is that patents on transgenic seed fail to satisfy the requirement of both the Constitution and the Patent Act that only technology with a beneficial societal use may be patented. U. S. Const., Art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts”) (emphasis added); 35 U.S.C. § 101 (“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor”) (emphasis added). As Justice Story wrote in 1817, to be patentable, an invention must not be “injurious to the wellbeing, good policy, or sound morals of society,” and “a new invention to poison people ... is not a patentable invention.” Lowell v. Lewis,15 F. Cas. 1018 (C.C.D. Mass. 1817). Because transgenic seed, and in particular Monsanto's transgenic seed, is “injurious to the wellbeing, good policy, or sound morals of society” and threatens to “poison people,” Monsanto's transgenic seed patents are all invalid.

5. Monsanto's patents are additionally invalid for other failures to meet the requirements of patent law, including that each violates the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode. Monsanto's patents would also not be infringed by Plaintiffs because, amongst other things, Plaintiffs do not intend to use Monsanto's transgenic seed, any seed possessed by Plaintiffs that may be contaminated by Monsanto's transgenic seed is not covered by any valid and properly construed claim of any patent in suit, and Monsanto's patents rights in transgenic seed exhaust upon the authorized distribution by Monsanto to its customers. Monsanto's patents are also unenforceable because, among other things, Monsanto has committed misuse, Monsanto is equitably estopped from enforcing them, and Monsanto commits trespass when its transgenic seed contaminates another. Lastly, Monsanto would not be entitled to any remedy under law or equity even if its patents were held to be valid, infringed and enforceable against Plaintiffs, as no economic injury happens to Monsanto and the public interest would not support granting Monsanto an injunction when its patented seed contaminates another…..

The plaintiffs in the suit represented by the Public Patent Foundation (PUBPAT) are: Organic Seed Growers and Trade Association; Organic Crop Improvement Association International, Inc.; OCIA Research and Education Inc.; The Cornucopia Institute; Demeter Association, Inc.; Navdanya International; Maine Organic Farmers and Gardeners Association; Northeast Organic Farming Association/Massachusetts Chapter, Inc.; Northeast Organic Farming Association of Vermont; Rural Vermont; Ohio Ecological Food & Farm Association; Southeast Iowa Organic Association; Northern Plains Sustainable Agriculture Society; Mendocino Organic Network; Northeast Organic Dairy Producers Alliance; Canadian Organic Growers; Family Farmer Seed Cooperative; Sustainable Living Systems; Global Organic Alliance; Food Democracy Now!; Family Farm Defenders Inc.; Farm-to-Consumer Legal Defense Fund; FEDCO Seeds Inc.; Adaptive Seeds, LLC; Sow True Seed; Southern Exposure Seed Exchange; Mumm's Sprouting Seeds; Baker Creek Heirloom Seed Co., LLC; Comstock, Ferre & Co., LLC; Seedkeepers, LLC; Siskiyou Seeds; Countryside Organics; Cuatro Puertas; Interlake Forage Seeds Ltd.; Alba Ranch; Wild Plum Farm; Gratitude Gardens; Richard Everett Farm, LLC; Philadelphia Community Farm, Inc; Genesis Farm; Chispas Farms LLC; Kirschenmann Family Farms Inc.; Midheaven Farms; Koskan Farms; California Cloverleaf Farms; North Outback Farm; Taylor Farms, Inc.; Jardin del Alma; Ron Gargasz Organic Farms; Abundant Acres; T & D Willey Farms; Quinella Ranch; Nature's Way Farm Ltd.; Levke and Peter Eggers Farm; Frey Vineyards, Ltd.; Bryce Stephens; Chuck Noble; LaRhea Pepper; Paul Romero; and, Donald Wright Patterson, Jr.

On the day of filing Monsanto hit out in its official online blog, Beyond the Rows. Describing PUBPAT’s application as containing many allegations which are false, misleading and deceptive and stating that the plaintiffs’ approach is a publicity stunt designed to confuse the facts about American agriculture.

107th Maclean Highland Gathering, 22-23 April 2011

Ceud mìle fàilte

The small NSW North Coast town of Maclean in the Clarence Valley is celebrating its 107^th Highland Gathering this Easter Weekend 22-23 April 2001.

The townsfolk are proud of their Scots heritage and the Lower Clarence Scottish Association puts on a grand show every year at this time, with Pipe Bands, Solo Piping and Drumming, Highland Dancing and the popular Highland Sports (including caber tossing, log wrestling and tossing the hammer) taking place at the Maclean Showground on the banks of the Clarence River.

Entry price:
Adults $15
Pensioners $10
School students $5

Contact: Bob MacPherson
Phone: (02) 6645 2887
Website: http://www.macleanhighlandgathering.com.au/

Yindjibarndi people protest against Twiggy Forrest and "the lie FMG want to fly"

FMG's Great Native Title Swindle from Yindjibarndi Aboriginal Corp. on Vimeo.

Legend:

Caught red handed – this is a record of a supposed 'native title' meeting staged by the iron ore miner, Fortescue Metals Group (FMG). It shows how FMG, its agents, a lawyer and an opportunist splinter faction tried to destroy the unity of the Yindjibarndi people and give open slather to FMG for its Solomon Hub project. The video demonstrates the unscrupulous actions of a miner trying to bully traditional owners into a land use 'Agreement' that will see massive disturbance of country and will swindle several generations of Yindjibarndi people. The fight continues. See yindjibarndi.org.au/​

* The mining company has reportedly sent a legal letter to Vimeo demanding this video be taken down. Vimeo has complied. It may now be viewed on North Coast Voices in the post In defence of free speech and First Peoples.

Has Rio Tinto bitten off more than it can chew?

An interesting timeline involving two mining multinationals, Rio Tinto and Anglo American, which are currently attempting to pressure the Australian Federal Government into watering down its proposed carbon price mechanism.............

Rio Tinto on joint venture plan to mine in a national park in Alaska, 2007 to 2010:

Rio Tinto has a 19.6 per cent equity holding in Northern Dynasty Minerals which owns a 50 per cent share in the Pebble Joint Venture (Rio Tinto share in Pebble: 9.8 percent). Northern Dynasty Minerals is advancing the Pebble copper-gold-molybdenum deposit in south western Alaska, which includes an ore body amenable to block caving.

The Pebble project is located about 200 miles south west of Anchorage in the Bristol Bay region of Alaska on land designated for mineral exploration and development.

World’s largest undeveloped copper resource….World’s largest gold resource in a porphyry deposit

New York Times reporting on Republican Sarah Palin, 21 October 2008:

Ms. Palin has remained officially neutral, saying that the state will evaluate the project when it receives a formal permit application. But she has embraced resource extraction in ways that are likely to help Pebble. On the presidential campaign trail in coal country this month, she led supporters in chants of “Mine, baby, mine!”

Anglo American’s Pebble Mine Investor Advisory October 2009:

According to mining engineer Jim Kuipers, the Pebble Project, if fully developed, “is likely to involve one of the largest infrastructure undertakings in the history of mining.” Based on current ore projections, the Pebble Project will be the largest copper and gold mine in North America, with an estimated footprint covering 30 square miles of the Bristol Bay watershed…… The Pebble project is opposed by a politically powerful coalition of diverse interests who have the support of a large segment of the Alaskan electorate. The majority of Bristol Bay area residents view large-scale mineral development as an unacceptable risk to the fishery and subsistence. A 2009 survey found that 71% of Bristol Bay residents oppose the Pebble Mine. The Alaska Inter-Tribal Council, a consortium of 231 federally-recognized tribes in Alaska, and many tribal governments of the region, have passed resolutions against the project.

Nunamta Aulukestai et al v. State of Alaska Department of Natural Resources, Excerpts from Plaintiffs Declarations and Plaintiffs Proposed Findings of Fact and Conclusions of Law (139 pages) 2009 -2010

Anchorage Daily News 13 July 2010:

A state judge has declined to dismiss a court case alleging that state regulators violated the Alaska Constitution when they issued exploration and land-use permits to companies drilling at the Pebble copper and gold prospect in Southwest Alaska…....Superior Court Judge Eric Aarseth on Friday dismissed one of the claims in the lawsuit but allowed the others to proceed to trial. He also ruled that the trial will address only the permits at Pebble rather than the validity of the state's permitting system for mineral exploration, in general.

U.S. Environmental Protection Agency, media release 7 February 2011:

In 2010, nine federally-recognized Bristol Bay tribes petitioned EPA to use its authority under the Clean Water Act to protect Bristol Bay. Their concerns focused on the potential Pebble Mine project. Two other tribes asked EPA to wait for mining projects to submit permit applications before taking action. ……Bristol Bay is an important source of wild Pacific salmon for commercial, recreational, and subsistence users. It produces hundreds of millions of dollars in annual fisheries revenues. The area may be the last major watershed in North America that produces historic numbers of wild salmon. Most of the Bristol Bay watershed is wildlife refuge or park where large development is restricted. EPA’s efforts will focus on those areas that are not protected.

Veteran U.S. actor Robert Redford as a Trustee of the Natural Resources Defense Council, email March 2011:

You should care about Rio Tinto. This British and Australian-based mining giant has a shocking and well-documented record of toxic contamination that spans the globe: from Indonesia to Bolivia to Utah. Now, as one of the major backers of the proposed Pebble Mine, it is threatening to destroy one of our greatest natural treasures: the Bristol Bay wilderness of Alaska. Rio Tinto wants us to believe it has changed its polluting ways. Its chief executive claims they want to have a “net positive effect” on the environment. Talk is cheap. Help us put their words to the test........ We shouldn’t trust any company -- much less a company with Rio Tinto’s dismal record -- to take a catastrophic risk with one of our last and greatest wild places.

The Failed Estate does Bolt over

Had to laugh at this response from Mr. Demore of The Failed Estate to the Channel 10 announcement that Andrew Bolt will get his own Sunday morning show. I'm predictng that Ten is shaping up for a monumental ratings disaster after the first few weeks.

'It is sobering looking through court lists'

A visit to a local court is not something most people have on the 'List of things to do' that's sitting under a magnet on the door of their fridge, but as pointed out in the editorial of today's Daily Examiner that's where a lot of action is really happening.

Most people travel past court houses and are totally ignorant of them. Others go by and remark about their appearance, especially those constructed in the 1800s; their design and workmanship provide evidence that the character of buildings really meant something and they were not just functional constructions of the type built in more recent times.

Again, most people have never been inside a local court and examined what they look like - there are some real charmers.

However, apart from their appearances it's the workings of a local court that most people have little or no idea about.

Readers of local papers, like the Daily Examiner, are provided with reports on court proceedings such as who did what and the penalty the court imposed. Naturally enough, local papers cannot report on every matter heard in local courts. It's usually only the big matters that are of substantial public interest that get a guernsey.  

The Examiner does a good job with the resources it has - reports are factual and objective, but space restrictions limit how much can be reported.

Today's Examiner highlights the types of matters that are occupying a good deal of court time. Apprehended violence orders (AVOs) and drink/driving top the list.
 

Click on image to enlarge to full article

Health implications local government should consider when planning new or expanded road systems

It has often caused me to smile wryly when I read of councils on the NSW North Coast targeting smokers lighting up and at taxi stands and bus stops, given the noticeable amount of air pollution produced by traffic along highways, main roads and other heavy traffic areas within the region.

So it was interesting to find that air pollution from nearby roads is thought to carry the risk of adverse impacts on pregnant women and the babies they carry - possibly due to the chemical toxins in traffic pollutants or because of disturbed sleep due to traffic noise.

The study quoted below was conducted in south-east Queensland where residents have similar housing and lifestyles to people living on the North Coast.

Increased traffic exposure and negative birth outcomes: a prospective cohort in Australia [Adrian G Barnett, Kathryn Plonka, W. Kim Seow, Lee-Ann Wilson, Craig Hanse,2010]

Background

Exposure to air pollution during pregnancy has been shown to increase the risk of negative birth outcomes such as pre-term birth and low birth weight [1–4]. Although the increased risks are relatively small [5–7], the public health implications are large because exposure to some level of air pollution is ubiquitous in urban areas, and pre-term and low weight babies: stay in hospital longer after birth, have an increased risk of death, and are more likely to develop disabilities [8–10]. Many of the estimated associations between air pollution and birth outcomes have relied on the temporal variation in pollution, but pollution also varies spatially [11]. Pollution levels in a city are generally higher in areas with lots of traffic and industrial areas. Temporal studies also rely on a fixed network of pollution monitors, and these monitors can often be far from subjects' homes. Ignoring the spatial variability in pollution therefore introduces a measurement error that may lead to regression dilution [12]. A study in Brisbane showed a clear strengthening of the association between increased pollution and small fetus size when reducing this measurement error by using pollution monitors closer to women's homes [6]. Studies in Spain have attempted to reduce measurement error by restricting analysis to those women who spent more time at home (where their pollution exposure was estimated), and found stronger associations between pollution exposure and fetal growth and birth weight [7,13]. Another reason for taking a spatial approach in this study was the public interest created by our previous study showing restricted fetal development due to increased air pollution exposure in Brisbane, Australia [6]. A common concern was the distance between the home and a busy road at which health effects occurred. This distance also has implications for council authorities looking to build or expand roads. By examining traffic exposure around the home we aimed to find the distance at which the majority of the negative impacts on birth outcomes occurred. Although levels of air pollution in South East Queensland are low compared with industrial cities, the population's exposure is relatively high due to an outdoor lifestyle and buildings that are highly permeable [14]. Many homes in Queensland are built to capture breezes in order to give relief from high summer temperatures. But this design also increases their exposure to traffic pollution. People living near major roads, and particularly major road junctions where the traffic often stops, will experience the highest levels of exposure…..

Conclusions Pregnant women should reduce their exposure to traffic. A reduction in traffic emissions, whether through improved vehicle technology or increased public transport use, would have immediate health benefits by giving children a better start to life.