Toward Fairness in Montana’s Farm Fields

Kiki Hubbard

By: Kiki Hubbard

Last month, Governor Schweitzer signed into law Senate Bill 218, a bill that received minimal attention during this year’s legislative session. This was in stark contrast to the 2009 session when a similar bill made national headlines. The issue is the interface of intellectual property rights, agricultural seed and farmers’ rights.

Given that more genetically engineered and other patented crops are entering U.S. soils, such as genetically engineered alfalfa and sugar beets, the Montana Legislature’s unanimous approval of Senate Bill 218 comes as a welcome move toward fairness in our farm fields. In a nutshell, the bill provides a sampling protocol that owners of plant patents or other intellectual property protections on seed must abide by when investigating a farmer for alleged infringement. That is, when a farmer is suspected of saving seed protected by intellectual property restrictions.

Importantly, the bill allows the Montana Department of Agriculture to participate in investigations as a third party and take samples. And when disputes between intellectual property holders and farmers arise, mediation is required before judicial action can be filed.

Though not perfect, the bill is a step in the right direction. And it was drafted with the help of farm groups who do not always see eye to eye. The Montana Department of Agriculture worked hard to bring diverse viewpoints to the table, including Montana Farmers Union, Montana Farm Bureau, Montana Organic Association, AERO, seed companies, and others.

The law aims to level the playing field for farmers of all conventions who are faced with accusations of patent infringement or other seed contract violations, including conventional growers and those who choose seed derived from biotechnology.

Why is this law necessary? For starters, Montana’s farmers and ranchers pride themselves on honesty and trust. Senate Bill 218 mandates a transparent process for collecting samples from farmers’ fields in cases of intellectual property infringement investigations.

Here in Montana we’re fortunate that none of our farmers have faced harassment on the part of patent holders. But that doesn’t mean our farmers and ranchers aren’t at risk of such intrusions of privacy and property.

That’s why Montana legislators chose to be pro-active and not wait for conflict or mistakes to occur when evidence for the problem exists in other states. Hundreds of farmers across the U.S. are investigated each year for infringing intellectual property rights on seed. While some of these farmers may be at fault, others say they followed the rules but were told of accusations after the opportunity to collect independent samples had passed.

Senate Bill 218 is one solution to such conflicts.

We know that seeds and plants disperse in the environment through pollen drift and the inadvertent transfer by humans, animals, and weather events. We also know that patenting living organisms, like seed, adds a new complexity to this reality, especially when patented plant genetics travel on pollen and cannot be completely contained. It’s critically important to ensure investigations that may include such events are carried out in an open and honest way.

Montana isn’t alone in passing this kind of legislation. At least five other states have introduced similar bills that aim to establish mandatory crop sampling protocols to protect farmers’ rights, including our neighbors in North Dakota.

While Senate Bill 218 provides some protection for farmers who are targeted – innocent or not – for intellectual property infringement, looking ahead, our next legislative effort must work toward transferring liability for the unwanted spread of patented, genetically engineered seeds and crops back to the patent owner.

The liability for the uncontrollable movement of patented seeds and plants is being unfairly passed to farmers and property owners who unknowingly acquire patented material. Farmers and landowners are placed in the uncomfortable and expensive position of defending themselves in cases of patent infringement allegations.

Farmers who neither choose nor benefit from the technology, and at times are harmed by it, need those who own, promote, and profit from it to be held responsible for unwanted contamination.

In Missoula, I’m Kiki Hubbard for the Alternative Energy Resources Organization. AERO has been building sustainable agriculture and energy solutions since 1974. Visit us online at

This commentary aired on Montana Public Radio on May 26, 2011


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