By Johnathan Hettinger, Investigate Midwest

The lawsuits, filed in January in federal court in the Eastern District of Missouri, allege that the farmers are in violation of their user agreements with Bayer and have harmed the company’s reputation with the EPA.

Bayer alleges the farmers also saved seeds from Bayer’s dicamba-tolerant crops and replanted them – a violation of their user agreement. During the course of the investigation into saving seeds, Bayer said it found evidence of the farmers illegally spraying older versions of dicamba, which are legal to buy but can’t be used on the crops. The lawsuit charges the farmers with patent infringement, breach of contract, tortious interference with business expectancies and negligence.

Critics say the lawsuits are an attempt by Bayer to blame the older version of the weedkiller for damage caused by the widespread legal use of dicamba on crops.

Millions of acres of farmland and natural areas have been harmed by dicamba moving off of where it was applied since genetically engineered dicamba-tolerant crops were introduced in 2015. Because of the damage, a federal court banned dicamba briefly in 2020, but the EPA re-approved dicamba with additional restrictions months later. That approval is currently being challenged.

The farmers that Bayer is suing for both saving seeds and illegal spraying of dicamba are: Mike Hodel, who farmed 430 to 500 acres of soybeans in 2020, 2021 and 2022; Greg Duffy, of Duffy Farms, who farmed 1,000 to 1,600 acres of soybeans; Caleb Duffy, who farmed 490 to 700 acres; and Brian Irions, of Irions Farms, who farmed 2,500 to 3,600 acres. All four are in Pemiscot County, Missouri.

Bayer also is suing two other Pemiscot County farmers for saving seeds, but not illegal spraying of dicamba: Robert Pierce Jr., of Wolf Bayou Farms, who farmed 1,275 to 1,550 acres annually; and Danny Glass, of Glass Farms, who farmed 490 to 1,350 acres annually.

All six farmers are represented by Wendell Hoskins, an attorney in Caruthersville, Missouri. Hoskins did not respond to requests for comment. In answer to the complaint, the farmers denied all claims by Bayer.

In response to questions from Investigate Midwest, a Bayer spokesman said that the lawsuits help “protect grower access to the technologies.”

“Illegal use threatens law-abiding growers’ access,” the spokesman said. “Deciding to pursue litigation against growers is not easy for us. We exist to serve and support growers. The vast majority of growers abide by the law and honor their contractual agreements. In these cases, there was clear evidence of irresponsible and illegal use.

Lawsuits ‘Relitigate’ Responsibility for Drift Harm

George Kimbrell, legal director for the Center for Food Safety, a nonprofit that is among those challenging the EPA’s 2020 approval of dicamba, said the lawsuits by Bayer are a strategic way to blame factors other than legal use of dicamba for the herbicide’s harm to farmers.

“They view this as a way to relitigate responsibility for drift harm,” said Kimbrell, who said that Monsanto, the original creator of dicamba-tolerant crops, has been suing farmers for decades for patent infringement by saving seeds from one harvest and planting them the next year. In 2012, the Center for Food Safety released a report showing that Monsanto had filed at least 142 lawsuits against farmers.

In 2013, the U.S. Supreme Court unanimously ruled against an Indiana farmer who alleged that Monsanto’s patent on the seeds exhausted after it was planted and he was allowed to replant seeds the next year.

Bayer purchased Monsanto in 2018 for $63 billion and set aside at least $16 billion in legal liability for its products, including over claims that Roundup leads to cancer. In 2020, a Missouri jury assessed $265 million in damages when the state’s largest peach farmer sued Monsanto and BASF for harm to his Bootheel peach farm. That total was later reduced and has not yet been finalized.

Bayer also announced in 2020 a $400 million settlement with farmers over dicamba damage; however, not all claims of dicamba damage have been settled. For example, Texas grape growers are suing Bayer seeking $560 million in damages for damage year-after-year to their crops.

Bayer said that southeast Missouri has had more cases of off-target movement than “most other parts of the country in recent years.”

“The EPA and state governments are responsible for establishing and enforcing pesticide laws. Because of the facts in these particular southeast Missouri cases, our actions were necessary,” Bayer said in an emailed statement.

Kevin Bradley, a professor of weed science at the University of Missouri, said that the Bootheel has more dicamba use than other parts of the state, where many farmers have switched to other cropping systems, including Enlist crops, which are sold by Corteva and are genetically modified to tolerate being sprayed by the weedkiller 2,4-D.

Bradley said while he’s sure some illegal use happens, it’s unlikely that it is the cause of millions of acres of damage.

“I don’t think it’s that widespread or the reason for what we’ve seen since 2016,” Bradley said. “I just don’t think it’s the culprit of all these problems.”

How Damage Happens

In recent years, dicamba has been used on farms to kill “super weeds” that have developed resistance to other pesticides such as glyphosate, the most sprayed pesticide in the U.S. and active ingredient in Roundup.

As a result, dicamba use has increased about six-fold in the past 10 years. For decades, the herbicide dicamba was limited in use because of its propensity to move from where it was applied and harm highly sensitive crops. Beginning in 2015, Monsanto introduced genetically-engineered crops that withstand being sprayed by dicamba. With the release of new seeds, companies like Bayer, Corteva and BASF have released versions of dicamba touted to be less volatile than older formulations (which remain on the market).

Dicamba movement happens in two main ways: drift and volatilization.

Drift is when the chemical’s particles move off the field when they are sprayed, generally by wind in the seconds or minutes after it is applied. Volatilization is when dicamba particles turn from a liquid to a gas in the hours or days after the herbicide is applied.

Volatilization is more likely to occur during warmer temperatures. In response, the EPA has added a nationwide cutoff date (June 30 annually) after which dicamba cannot be sprayed. The EPA has also implemented earlier cutoff dates in some states, such as Illinois, Iowa and Indiana.

The lawsuit alleges that the Missouri farmers sprayed dicamba after the June 30 cutoff date in 2022.

Damage from volatilization frequently occurs through a process called “atmospheric loading,” which is when so much dicamba is sprayed at the same time that it is unable to dissipate and persists in the air for hours or days, poisoning whatever it comes into contact with.

Volatilization is particularly concerning because dicamba can move for miles and harm non-target crops, especially non-resistant soybeans, or lawns and gardens. Tomatoes, grapes and other specialty crops are also at-risk of being damaged.

Illegal spraying

Dicamba is inconsistently regulated by the EPA. Older versions, which are more likely to volatilize, are allowed to be sprayed on corn, during burndown applications to kill weeds before planting, as well as in other crops. These versions are much cheaper and have been allowed for decades.

However, when the U.S. EPA approved the use of dicamba on genetically modified crops, the agency required farmers to use newer versions of dicamba designed to be less volatile. The two genetically modified crops, soybeans and cotton, make up about two-thirds of dicamba use in the U.S., according to the U.S. Geological Survey.

Bob Hartzler, professor emeritus of weed science at Iowa State University, said he places the onus on the EPA to take the older products off the market. There are many formulations of dicamba, and even taking the most volatile ones off would help.

“The old products are significantly cheaper than the newer products,” Hartzler said. “The higher volatility of these products results in more off-target movement.”

“It seems like it would be a fairly easy fix to take the older products off the market,” Hartzler said.

Illegal spraying of dicamba has been at the forefront of the controversy. When Monsanto released dicamba-tolerant crops in 2015 and 2016, EPA had not yet approved a dicamba herbicide that could be used on the dicamba-tolerant crops.

During those seasons, many farmers illegally sprayed older versions of dicamba on the crops. Internal documents previously reported by Investigate Midwest show that Monsanto and BASF knew illegal spraying would be “rampant.”

Monsanto employees joked that a pink sticker telling farmers not to spray dicamba would keep them out of jail. At the same time, BASF ramped up production of older versions of dicamba that were illegal to spray on dicamba-tolerant crops, making tens of millions of dollars selling the products. In July 2016, when dicamba was illegal to spray on the crops, a BASF employee noted that “there must be a huge cloud of dicamba blanketing the Missouri Bootheel. That ticking time bomb finally exploded.”

In the years since, Monsanto and Bayer have continued to allege that illegal spraying of dicamba is a leading cause of the damage.

However, in its June 2020 ruling to ban dicamba the U.S. Ninth Circuit Court of Appeals, which is made up of the nine Western-most states, wrote that this claim was “not supported by the data.” Academics, including Hartzler and Bradley, have also dismissed this claim.

Bayer said “it is clear to us that XtendiMax herbicide (their version of dicamba), when used according to the product label instructions, can be used effectively and successfully on-target.

In 2022, Bayer received 246 reports of potential off-target movement — the lowest number since XtendiMax herbicide was first registered,” the spokesman said.

Bradley said many people have “dicamba fatigue” and farmers just aren’t reporting damage or paying as much attention because it seems like the EPA is not going to take action.

“I don’t know what else can be done. It feels like a never-ending cycle of the same thing year after year,” Bradley said.

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