Court Battles Over GMOs in Southeast and Midwest Wildlife Refuges

Uncommon road sign in Merritt Island National Wildlife Refuge

Uncommon road sign in Merritt Island National Wildlife Refuge

A Federal District Judge recently held that Fish and Wildlife Services’ (FWS) decision to permit the planting of genetically engineered crops in the Southeast Region without conducting requisite analysis violated federal law.

In a hearing held on November 5, the Court ordered that the Agency must stop growing GE crops in the Southeast Region until it complied with the environmental laws. Among other things, the Court held that:

  • FWS is to conduct field surveys of the areas where GE crops were or are planted in the 2012 growing season & release the information regarding the location of the crops, acreage planted, the type of crop (e.g., Roundup Ready, Bt corn, etc.), and the types of pesticides (including herbicides) used, including the dates and amounts of application
  • FWS is required to conduct field surveys this year and for two additional years in the same areas to locate “volunteers” – i.e., new genetically engineered plants that germinate in the fields – and remove or destroy any such volunteers & report to the watchdog groups that brought the lawsuit on the quantity and location of any volunteers that are located and how they were removed or destroyed.

In the lawsuit, plaintiff groups, Beyond Pesticides, Center for Food Safety (CFS) and Public Employees for Environmental Responsibility (PEER) argued that the Agency failed to conduct a “compatibility determination” required under the Refuge Act, that specifically addresses the use of genetically engineered crops. Moreover, Plaintiffs also pointed to FWS’ explicit policy that prohibits the use of genetically engineered crops on refuge land unless there is “no feasible alternative” for accomplishing a refuge purpose.  Without conducting the compatibility analysis and environmental studies, FWS has allowed the planting of genetically engineered crops on some 44,000 acres of refuge land in the Southeast Region, necessitating the watchdog groups to address the issues with a lawsuit.

According to court documents, the Southeast Region (Region 4) of the National Wildlife Refuge System covers over 430,000 square miles in ten states.  The Region includes 128 national wildlife refuges covering some 4 million acres of protected land.  In addition to serving as a haven for 322 endangered species, the Southeastern refuges have permitted some agricultural production since at least the 1930s.

Farming on national refuge lands is accomplished pursuant to cooperative farming arrangements with local farmers, whereby they plant common agricultural crops, including corn and soybeans, as well as millet, winter wheat and perennial grasses, in designated areas and harvest a share of the crop.  Some portion of the crop is left standing to be available as feed for ducks, geese, other migratory and local birds, as well as deer and other wildlife.

The Southeastern region lawsuit is the third in a series filed by the environmental watchdogs seeking to protect the nation’s wildlife refuges from FWS’ practice of permitting the planting of genetically engineered crops.  In 2009 and 2010, the groups successfully challenged approval of GE plantings on two wildlife refuges in Delaware – Prime Hook and Bombay Hook National Wildlife Refuges – which forced FWS to end GMO planting in the entire 12-state Northeast Region.

“The simple point we are making in case after case is that genetically modified crops have no legitimate role on a national wildlife refuge,” said PEER Counsel Kathryn Douglass in a press release.

The watchdog groups had less success in a similar lawsuit filed against the FWS in the Midwest Region. In that case, the same Judge held in an October 15 ruling that the Agency’s Environmental Assessment was adequate. Paige Tomaselli, an attorney with the CFS, told GMO Journal that plaintiff disagrees with the ruling and is now considering its options including the possibility of an appeal.