SB2151 96TH GENERAL ASSEMBLY

LRB096 11433 JDS 21906 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB2151

Introduced 2/20/2009, by Sen. John O. Jones

SYNOPSIS AS INTRODUCED:

New Act

Creates the Farmer Protection Act. Provides that the release by a manufacturer of a genetically engineered plant shall constitute a private nuisance for which the manufacturer shall be liable only if the release (i) causes the presence of the plant within the property owned or occupied by a person for whom the plant presence was not intended and (ii) results in damage in any calendar year that exceeds $3,500. Provides that defenses at law or equity available in a private nuisance action apply to actions brought under this Act. Provides that a person owning or occupying the property upon which a nuisance release occurs does not have a duty to establish buffer zones, segregation protocols, or otherwise initiate measures to protect specifically against the potential release of genetically engineered plants. Provides that a person who is not in breach of a seed contract regarding the purchase or use of a genetically engineered plant and that unknowingly comes into possession of a genetically engineered plant shall not be liable for certain damages. Authorizes, under certain conditions, a seed supplier or, in some cases, the Director of Agriculture or his or her designee to enter upon real property farmed by another person for the purpose of obtaining crop samples. Authorizes the seed supplier to petition the circuit court for the county in which the real property is located for an order granting permission to enter upon the farmer's real property. Sets forth protocols for inspections. Provides that a farmer has a right of action against a seed supplier for violations of the Act and may recover certain damages. Effective immediately.

A BILL FOR

AN ACT concerning agriculture.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the "Farmer Protection Act".

Section 5. Definitions. As used in the this Act:

"Department" means the Illinois Department of Agriculture.

"Director" means the Director of Agriculture or the Director's designee.

"DNA" means deoxyribonucleic acid.

"Farmer" means the person responsible for planting a crop, managing the crop, and harvesting the crop from land on which a breach of contract or patent infringement is alleged to have occurred.

"Genetically engineered plant" means a plant or any plant part or material, including seeds and pollen, in which the genetic material has been changed through modern biotechnology in a way that does not occur naturally by multiplication or natural recombination.

"Manufacturer" means a person that develops or creates a genetically engineered plant for field trials or for commercial purposes, but does not include a person that is a farmer, seed cleaner, or other non-manufacturer third-party.

"Modern biotechnology" means the application of in vitro nucleic acid techniques, fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers and that are not techniques used in traditional breeding and selection, including the following:

(1) recombinant DNA;

(2) direct injection of nucleic acid into cells or organelles; and

(3) recombinant DNA techniques that use vector systems and techniques involving the direct introduction into the organism of hereditary materials prepared outside the organism, such as microinjection, macroinjection, chemoporation, electroporation, microencapsulation, and liposome fusion.

"Seed" means agricultural seed or vegetable seed used to grow a commercial agricultural or a commercial vegetable crop.

"Seed contract" means a written contract between a seed supplier and a farmer that a farmer must sign to obtain the seed or the right to plant the seed.

"Seed supplier" means a person engaged in commercial production, manufacture, or supply of seed.

Section 10. Manufacturer Liability.

(a) The release by a manufacturer, directly or through its licensees or agents, of a genetically engineered plant shall constitute a private nuisance for which the manufacturer shall be liable if the following conditions are met:

(1) the release causes the presence of the plant within the property owned or occupied by a person for whom the plant presence was not intended and with whom the manufacturer has not entered into a seed contract or a license, and thereby constitutes an unreasonable interference with the use and enjoyment of that person's property; and

(2) the release results in damages in any calendar year that exceed $3,500, thereby constituting substantial interference with the use and enjoyment of the person's property.

(b) Defenses at law or equity available in a private nuisance action apply to actions brought under this Section, except it shall not be a defense to an action based on the liability set forth in subsection (a) of this Section that genetically engineered plants are in common or general use in the geographic region in which the property on which the nuisance occurs are located, nor shall the person owning or occupying the property have a duty to establish buffer zones, segregation protocols, or otherwise initiate measures to protect specifically against the potential release of genetically engineered plants onto that person's property.

(c) A person who is not in breach of a seed contract regarding the purchase or use of a genetically engineered plant and that unknowingly comes into possession of a genetically engineered plant or that uses a genetically engineered plant as a result of natural reproduction, cross-pollination, seed mixing, or other commingling or unintended presence or other contamination shall not be liable for any damages, attorney fees, or costs caused by the possession or use of that genetically engineered plant.

(d) A manufacturer shall have a defense to liability for an action based on the liability set forth in subsection (a) of this Section if the court finds that all of the following conditions are met:

(1) the property from which the genetically engineered plant was released can be determined;

(2) the owner of the property from which the genetically engineered plant was released, or the owner's agent, signed a seed contract with the manufacturer for the genetically engineered plant and received a training manual from the manufacturer;

(3) the damages would not have occurred had the property owner or the property owner's agent followed the terms of the manufacturer's seed contract and training manual; and

(4) the property owner or the property owner's agent willfully or with gross negligence contaminated the plaintiff's property, products, or facilities.

(e) A person found to have willfully or with gross negligence contaminated the plaintiff's property, products, or facilities shall be liable for damages in lieu of, and to the same extent as, a manufacturer.

(f) A prevailing plaintiff in an action under this Section may recover damages as are recoverable at common law in an action for private nuisance, reasonable attorney fees, and other litigation expenses and costs, including expert witness fees.

(g) The liability created by this Section shall not be waived or otherwise avoided by contract or other means.

(h) A cause of action arising under this Section shall be in addition to and not in lieu of existing actions at law and equity; however, there shall be only one recovery of any specific damages as defined in this section.

Section 15. Inspections.

(a) Sections 15 through 30 of this Act apply to the inspection of seed and the crop growing from seed by a seed supplier.

(b) A seed contract shall not give or be interpreted to give a seed supplier or an agent of a seed supplier the right to enter real property owned or occupied by a farmer to acquire samples of a crop grown from the seed or any other plant growing on that real property. A seed supplier of any type of seed may only enter upon real property farmed by another person for the purpose of obtaining crop samples if both of the following conditions are met:

(1) the seed supplier notifies the farmer and the Director of the seed supplier's desire to enter onto the real property and of the purpose of the requested entry and requests written permission from the farmer or the farmer's agent to enter upon the farmer's real property; and

(2) the seed supplier obtains the written permission of the farmer to enter upon the real property of the farmer; the farmer shall grant or deny the request of the seed supplier within a reasonable period of time.

(c) If a seed supplier or a farmer requests the Director to participate in or conduct the collection of samples or any other aspect of the sampling or analysis process, the Director shall designate an employee of the Department or enter into an agreement with another person to participate in or conduct the specified activity.

Section 20. Sampling Protocol.

(a) The seed supplier shall reasonably cooperate with a farmer and the Director or their agents in the course of the activities set forth in this Section.

(b) The seed supplier shall permit the farmer and the Director or their agents to accompany the seed supplier or the seed supplier's agent while samples are taken. An employee of the Department shall oversee the collection of samples. If the Director or an agent of the Director accompanies the seed supplier on the real property to take samples under this Section, the seed supplier shall reimburse the reasonable costs incurred by the Director or the Director's agent, as determined by the Director, in connection with such activity.

(c) Plant material samples shall be acquired in a manner that is agreed upon by the parties involved. In the event that an agreement cannot be reached, the manner for sample acquisition shall be prescribed by the Director. The samples may only be taken from a standing crop, from representative standing plants in the field or from crops remaining in the field after harvest. Samples shall be taken by Department personnel. The Department may select another entity to collect samples if all parties agree.

(d) A seed supplier shall take no more samples than those deemed by the Director to be reasonably necessary. An equal number of samples shall remain in the custody of the Director or the farmer for future comparison and verification purposes.

(e) All samples taken shall be placed in containers and labeled as to the date, time, and location from which they were taken, and the labels shall be signed by the farmer or farmer's agent, the person who took the samples and the Director or Director's agent.

(f) Within 60 days after the date the samples are taken, an independent laboratory shall conduct all tests on the samples.

(g) The parties shall mutually agree upon the laboratory and the methods used for the analysis of samples. If the laboratory or methods cannot be agreed upon, an independent third party agricultural mediator shall make the final determination of the laboratory and methods to be utilized. The seed supplier shall pay the reasonable costs incurred by the need for mediation. The results of all tests on the seeds shall be reported by the testing laboratory to the Director.

(h) Any plant material remaining after analysis is complete shall be retained by the laboratory or the Department in an appropriate manner.

(i) The results of testing shall be sent by registered letter to the seed supplier and the farmer within 30 days after the results are reported from the testing laboratory to the Director.

Section 25. Denial of Permission to Inspect.

(a) If a farmer denies permission for a seed supplier to enter upon the farmer's real property for an inspection under to Section 15 of this Act, the seed supplier may petition the circuit court for the county in which the real property is located for an order granting permission to enter upon the farmer's real property.

If the court issues such an order, the order shall require that the sampling protocol set forth in Section 20 of the Act be implemented. A court order shall not interrupt or interfere with normal farming practices, including harvest and tillage.

(b) The parties may participate in mediation at any time. The mediation shall be conducted by a mediator jointly selected by the parties. If the parties cannot agree on a mediator, the mediation shall be conducted by an independent agricultural mediation service.

(c) If a seed supplier files suit against a farmer, the seed supplier shall provide simultaneous written notice of the suit to the Director. The Director shall keep a file of all notices of suits received pursuant to this section.

Section 30. Right of Action for Violations; Damages; Attorney Fees and Costs; Choice of Law; Jurisdiction; Venue.

(a) A farmer has a right of action against a seed supplier if the seed supplier or an agent of the seed supplier violates the provisions of this Act.

(b) If a farmer prevails in an action filed under this Section, the farmer is entitled to recover from the seed supplier the following:

(1) actual damages proven by the farmer resulting from the seed supplier's violation of this Act; and

(2) the farmer's reasonable attorney fees and other litigation costs, including expert witness fees, incurred in connection with the action.

(c) A seed contract authorizing the use of seed in Illinois is governed by the law of Illinois. Illinois law shall govern any dispute relating to or arising out of the use of a seed in Illinois, notwithstanding any contrary choice of law contractual provision.

(d) Any provision in a seed contract purporting to waive or preclude the application of Illinois law and to choose the laws of another jurisdiction to govern the contract, or to choose a forum for adjudication of disputes arising out of the contract that would not otherwise have jurisdiction over the parties to the contract, is void and unenforceable.

(e) The proper venue for an action pursuant to any and all sections of this Act is the circuit court in the county in which the damage occurred. Any contractual provision purporting to waive or preclude Illinois as the proper venue is void and unenforceable.

Section 97. Severability. If any part or application of the Farmer Protection Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 99. Effective date. This Act takes effect upon becoming law.