Mendocino new biotech battlefield

By Mike Lee -- Bee Staff Writer

Published Saturday, January 3, 2004

A grass-roots effort to ban genetically engineered crops has thrust Mendocino County into a nationwide power struggle over who gets to make the rules for biotech plants.

The first lawsuit attempting to slow down the proposed ban failed this week. But it promises to be only the beginning of legal arguments over the county's March 2 ballot Measure H -- the first of its kind in the country and one that takes advantage of a void in public policy.

At issue is whether local or state governments can set stricter biotech policies than the federal government and the degree to which they can set their own rules where federal standards do not exist.

Historically, California has done little to regulate biotech crops even though it has ample reason to do so: It is the nation's largest farm state, the center of its organic food production and one of the most popular states for field-testing genetically modified crops.

Co-owners of an organic brew pub in Mendocino County are aiming to change that locally with Measure H, which they started as a pre-emptive strike against the spread of biotech into the county's crops, such as wine grapes.

Precedents set in left-leaning Mendocino are being watched closely by organic activists eyeing copycat measures elsewhere.

"You may be able to find counties around the country that would be interested in this kind of thing, so it has some real national implications," said Michael T. Roberts, director of the National Agriculture Law Center.

Also watching closely is the state's major farm chemical trade group, the California Plant Health Association, whose members include international biotech giants such as Monsanto, Bayer CropScience and Dow AgroSciences.

Those companies joined others to spend more than $5 million in 2002 to defeat an Oregon ballot measure that would have required labeling of genetically modified foods sold there.

"It's just bad policy for a county to regulate crops in this manner," association President Steven Beckley said of the proposed biotech ban. "If it's Mendocino County today, it could be some other county tomorrow."

Beckley said the association will decide in the coming weeks how far it will go to stop the initiative, but a spokeswoman said the association hired a company to "take the temperature" in Mendocino.

Several county residents have reported getting polling phone calls that seem to push a pro-biotech agenda. The crop association spokeswoman said she did not know whether that was an association poll.

A few days before Christmas, the crop association took its first legal swipe at the ballot measure, filing a lawsuit aimed at deleting sections of voters' pamphlet arguments submitted by supporters of the biotech crop ban.

For instance, they tried to remove a section that said organic farmers would lose organic certification if biotech genes polluted their crops. Federal rules currently provide leeway for unintentional contamination.

However, the lawsuit failed Monday when a county judge said the language in question was no more misleading than the statements offered against the ban -- for instance, that the ballot measure would subject backyard gardens to government review.

Supporters of the measure were quick to paint the legal challenge as an attempt by unprincipled mega-corporations -- outsiders -- to undermine the local democratic process.

"They don't live here. They don't work here or own farms here," said measure creator Els Cooperrider, owner of the Ukiah Brewing Co., in a press statement after the court victory.

Several federal laws and three federal agencies regulate various aspects of biotech crops. However, federal regulators have shied away from regulating -- or even monitoring -- biotech plants after they are approved for consumers.

The U.S. Department of Agriculture declined to say how it views local efforts like Mendocino's.

The result is a checkerboard of state and local policies, most of which attempt to protect the biotechnology industry. In 2001-02, the Pew Initiative on Food and Biotechnology found 158 pieces of legislation on agricultural biotechnology introduced in 39 states.

Approximately 30 states passed legislation prohibiting destruction of biotech fields. Only a handful legislated more complex matters such as who is liable when biotech genes drift into non-biotech crops.

"Liability issues ... are good examples of the kind of real world issues that ... states are increasingly having to look at," said Michael Rodemeyer, executive director of the Pew Initiative, a nonpartisan research group in Washington, D.C.

Rodemeyer said it's not clear whether states can set stricter environmental standards for biotech crops than the federal government, although California commonly does that with potential environmental threats such as farm chemicals.

Lack of clarity at the state level means that Mendocino is free to make its own rules, according to Frank Zotter Jr., Mendocino County's chief deputy counsel.

"There is currently a vigorous debate about the safety and potential impacts of genetically modified organisms in the food supply," Zotter said in a legal analysis of Measure H for Mendocino County supervisors.

"It would not be irrational for a community to take the step of prohibiting such activity pending further study or until higher echelons of government choose to allow such activity despite local regulation," he said.

The California Plant Health Association argues that Measure H could give the county an economic advantage over places that haven't banned genetically engineered crops. That, it claims, violates federal laws concerning free interstate commerce.

In a nine-page legal analysis submitted to Mendocino supervisors, the association's Beckley also said the proposal violates sections of the federal Plant Protection Act, which regulates biotech plants, and the U.S. Constitution, which gives federal law authority over states.

Consistent federal support for biotechnology, he said, means that anti-biotech efforts "would be an obstacle to congressional objectives."

Despite such assertions, Allen Cooperrider, who with wife Els started the Measure H drive, remains confident that the proposed ban is legally sound.

Political reality erodes that confidence some, however. Pressure from the farm chemical lobby could draw the state Legislature into an issue it has largely avoided, which Cooperrider worries could undermine Mendocino's attempt to create a biotech-free haven.

About the Writer The Bee's Mike Lee can be reached at (916) 321-1102 or