Growers allege Bayer, BASF liable for damage to thousands of acres of grapes
A group of nearly 60 Texas vineyards, including some in Terry County, filed suit Friday against agribusiness companies Bayer and BASF, alleging that their weedkiller dicamba, used heavily in the state’s vast cotton fields, has damaged thousands of acres of wine grapes.
The case from many growers in the High Plains is believed to be the first dicamba suit from the U.S. wine industry. It says that 95% of productive grapevines have sustained damage across dozens of vineyards there, with the worst occurring in the past three years, as more and more local cotton growers used the herbicide.
“The cloud of dicamba that now covers the High Plains each summer has crippled what was an award-winning and rapidly growing industry,” the lawsuit says. “The vineyards have seen their production fall dramatically, and what grapes do grow are often rejected for poor quality.
“Contracts have been canceled,” it continues, “winemakers have had to seek grapes elsewhere, and a stigma has attached to the region. The overall value of these vineyards has been significantly impaired both now and in the future.”
Combined with other newly filed cases — including a separate suit from a beekeeper who was formerly Arkansas’ biggest honey producer — the legal action reflects the expanding and diversifying web of litigation ensnaring the chemical and the companies behind it. And while Bayer agreed last summer to pay $400 million to settle dicamba suits, the agreement only applies to soybean damage reported by last year.
The lawsuit says the existence of many High Plains vineyards is under threat because of the dicamba herbicide being sprayed on more than two-thirds of the 3 million acres of cotton in the Texas High Plains.
“I think we’re going to end up seeing more like this,” said Paul Lesko, a St. Louis-based lawyer involved with separate dicamba cases.
Bayer said on Friday that it had yet to be served with the Texas lawsuit, which seeks hundreds of millions in dollars in damages, but that the company “stands strongly behind the safety and utility” of its dicamba technology pioneered by Creve Coeur, Mo.-based Monsanto, which it acquired in 2018.
BASF suggested that a 2019 freeze and “other known sources of herbicides” are among the factors that have contributed to problems at the heart of the new case.
“BASF has had the opportunity to review these claims and the alleged damage and strongly disagrees with the allegations in the lawsuit,” the German chemical company said in a statement of its own.
As we know, the Texas’ High Plains is home to major cotton production, and the first dicamba-tolerant seeds brought to the market were cotton varieties from Monsanto, introduced in 2015.
The lawsuit says the cotton herbicide can drift to nearby vineyards in different ways. It says the most destructive is when the dicamba herbicide evaporates and moves in the air as a gas — it can move for many miles, according to the lawsuit. It can also physically drift due to wind, or drift during a temperature inversion when it becomes suspended in a mass of cool air that hangs above the soil line, according to the lawsuit.
“Once sprayed, volatilized or drifting dicamba can travel for many miles before falling on plants,” the lawsuit says. “When damaged by dicamba in even one season, a vineyard can take years to recover (if at all).”
The lawsuit claims that dicamba, the relatively new herbicide used by many cotton growers, is more than 300,000 times more volatile than glyphosate, the active ingredient in Monsanto’s Roundup.
In response to the lawsuit, Bayer released the following statement:
“We have great sympathy for any grower who suffers a crop loss, but there are many possible reasons why crop losses might occur including extreme winter weather conditions that can have particularly devastating effects on perennial crops like vineyards. While Bayer has not been served with the Texas lawsuit, we stand strongly behind the safety and utility of our XtendiMax [a dicamba-based herbicide] herbicide and will continue to defend this technology.The EPA has comprehensively evaluated XtendiMax and determined it does not pose any unreasonable risks of off-target movement when used according to label directions.”
Millions of acres of crop damage have now been reported across U.S. farms — including claims that led to a $265 million jury ruling last year against Bayer and BASF in favor of Missouri peach farmer Bill Bader — all fueling heated controversy and tearing an often bitter rift in the agricultural community.
According to the Lubbock Avalanche-Journal, Ted Liggett of the Liggett Law Group in Lubbock and Adam Dinnell of the Houston law firm Schiffer Hicks Johnson, both attorneys representing the grape growers, say Monsanto knew as early as 2009, years before the seed system was released, that dicamba was highly volatile and that it would have far reaching impacts on other crops.
Attorneys also say Monsanto and BASF knew that drift and volatilization would occur even if the cotton growers applying dicamba did exactly as they were supposed to do.
Fifty-seven wine grape growers representing about 3,000 acres of vines are part of the lawsuit, saying they’ve suffered $114 million in economic damages.
The lawsuit filed in Jefferson County on Friday, June 4, seeks to recover the $114 million in damages, plus $228 million in punitive damages from Bayer-Monsanto and $228 million in punitive damages from BASF based on the companies knowing the damages it could cause, the lawsuit states.
More than 85% of all the wine grapes grown in Texas are grown within one hour of Lubbock, and the grapes are produced, sold or used by the state’s $13.1 billion wine industry.
“Many of these vineyards have taken 20 to 30 years to cultivate in an area where only cotton was grown,” Liggett said. “They gave new purpose to the land, delivered a far more lucrative crop and created an industry that’s recognized for its excellence around the world. Now all that grit, hard work and community pride is at risk of being lost.”
Local vineyard owners involved in the case are not at liberty to discuss the case at this time.
From Lubbock Avalanche-Journal and Arkansas Democrat Gazette and local reporting