Ivan Del ValleJust now·13 min readThe “Baxter vs. Marsh” Case StudyThe “Baxter vs. Marsh” Case StudyOrganic Agriculture vs. Genetically Modified Organisms (GMO)Ivan Del ValleAbstractThe case study “Baxter vs. Marsh” is centered around organic agriculture versus genetically modified organisms (GMOs). The events took place in Kojonup, 160 miles south east of the city of Perth in Western Australia. The Baxter and Marsh farms were adjacent to each other, with the first one focusing on organic farming while the second one on GMO crops. Just before Baxter’s first crop of genetically modified canola was harvested, the standing crop was sprayed with herbicide, and rather than being direct harvested, the crop was swathed and left in the field (exposed to the elements) for collection in two or three weeks. GMO swathes and seeds were subsequently found over much of Marsh’s farm, losing its organic certification and triggering a legal action that “ran over three weeks, and was then dismissed in its entirety; with no nuisance, negligence, injunction, or damages” (Paull, 2014). This paper will explore the problem, causes, possible alternatives, and a recommended action plan.Keywords: Organic Farming, GMO, Genetically Modified Organisms, Baxter, MarshThe “Baxter vs. Marsh” Case StudyThe introduction of genetically modified seeds and crops has given rise to substantial public debate, with proponents and opponents taking hard-lined positions over the advantages and disadvantages of their introduction. Food coming from genetically modified organisms (GMOs) has met considerable rejection among European Union (EU) consumers. The EU import ban on GM food has triggered a great deal of controversy and has been partly replaced by a mandatory labeling scheme. The words health, ecology, and environment are usually associated with debates related to GMOs versus organic farming.“The anti-GMO lobby accuses proponents of this technology of pushing the introduction of GMOs into agriculture without adequately considering health and environmental risks. The pro-GMO camp charges its opponents with blowing potential risks out of proportion in order to manipulate public opinion against this new technology” (Marris, 2001). Four crops dominate most of the world’s GMO farming, being them soy, corn, cotton, and canola (CBAN, 2015). Five countries account for 90 percent of the production-United States, Brazil, Argentina, India and Canada (CBAN, 2015). In contrast, “Australia is the country with the most organic agricultural land in the world-with 97 percent of the farmland being extensive grazing areas” (Willer & Lernoud, 2019).Organic farming is much more widely distributed among the world, with more than 162 countries reporting farming statistics. As of 2015, 40 percent of the world’s certified organic agriculture came from Australia, followed by Argentina, United States, China, and Spain (Paull, 2015). This case study is centered about a GMO intrusion/contamination event that took place in Kojonup, a rural area with approximately 2,100 habitants located in the south west corner of Australia.The ProblemSteve Marsh grew organic oats, wheat, rye, spelt and sheep just outside of the town of Kojonup. His farm was certified as organic since 2006. Marsh’s neighbor was Michael Baxter, who grew cereal crops, sheep, and canola. Their farms share a common boundary of about 2.2 miles, with Baxter’s one being sized at 2,223 acres, and Marsh’s at 1,178. In 2010, Baxter planted GMO canola in two of his boundary paddocks, and non-GMO canola in the middle (saying he ran out of GMO seed). Marsh warned Baxter that such action could jeopardize his organic certification, and Baxter proceeded anyway. The result was that GMO canola blew across the organic farm (swathes were identified), causing 70 percent of Marsh’s farm decertified as organic in 2010.GMO canola was approved in Australia since 2003, and “the need for maintaining a segregation of GMO and non-GMO agriculture was identified as an issue from the outset. However, no precautions, protocols or penalties for breach were legislated” (Paull, 2015), triggering moratoriums that were lifted in 2010. In April of 2012, Marsh sued Baxter, and the case was first heard in February of 2014 for 12 days. The case had four primary elements: nuisance, negligence, injunction, and damages. First, proving that the events have been a nuisance to Marsh and that Baxter was negligent. Second, the plaintiff looked for an injunction-with the court ordering Baxter’s behavior to be different moving forward, and for Baxter to pay Marsh the losses incurred as a result of the organic decertification.Literature ReviewThe “Baxter vs. Marsh” case study has become of the most representative examples of legal confrontation between the groups representing organic goods and genetically modified organisms (Paull, 2014). The lack of sufficient research and/or regulations to guarantee the safety of GMOs-in addition to the aggressive tactics of the companies holding their patents, have diminished their credibility and confidence, failing to manipulate the public opinion in favor of this new technology. As per Marris (2001), uncertainty should not be taken into account in decisions in which it would be impossible to anticipate all risks in the long term.Four crops-soy, corn, cotton, and canola, dominate most of the world’s GMO farming (CBAN, 2015). Forty percent of the world’s certified organic agriculture comes from Australia, followed by Argentina, United States, China, and Spain (Paull, 2015). In addition, Australia is the country with the most organic agricultural land in the world (Willer & Lernoud, 2019), so it was just a matter of time for the Continent to take center stage in the discussions of the topic.What started as a feud between two farmers for damages estimated at 60,000 Euros, eventually escalated to legal costs of 570,000 Euros that were surprisingly awarded to Baxter (Paull, 2015). In an unexpected twist, the courts suggested that the organic decertification of some of Marsh’s paddocks due to contamination were due to unrealistic expectations of the certifying agency (Kym, 2015).While South Australia has a moratorium on the commercial cultivation of GMO crops-scheduled until 2025 (Anderson, 2019), both sides should allocate time and resources in performing a stakeholder’s analysis on the potential threats weighted against the possibility of mutual benefits driven by a cooperative approach (Watt, 2014).Root Cause AnalysisThe method used by Baxter to harvest the GMO canola quickly took center stage in the case. He had grown non-GMO canola for a decade, and he had always beheaded the crop, harvesting the seeds immediately as part of the process. For the GMO canola, Baxter changed the process, swathing the crop-cutting the stalks, applying herbicide, windrowing the cut stalks, and leaving them for 3 weeks before collection, which explains how the GMO canola material (stalks, swathes, seed pods, and seeds) came to be blown across the Marsh farm during those 3 weeks.The judge accepted that 245 GMO canola swathes were blown onto the Marsh’s organic farm- “intruding” 0.75 miles into the farm. The judge ruled it as an “intrusion” rather than “contamination”, which was not in alignment with the organic certifier definition. He ruled that there was no physical damage to the Marsh farm and suggested the organic farmer to take up the decertification with his certifier rather than Baxter. As it relates to the negligence charge, the judge stated that Baxter had not used swathing as a harvest method before, so he could not have foreseen the blowing of the GMO material into Marsh’s farm.The injunction charge was dropped as well, and what started as a buffer zone conversation between future GMO crops and Marsh’s farm was replaced with a failed request for a ban on swathing as a canola harvest method. The fourth element of the plaintiff was around the damages. “Damages to Marsh’s enterprise were agreed between the parties at 60,000 Euros, mostly due to the loss of the organic premiums on farm outputs due to the loss of certification, but having lost the case, legal costs of 570,000 Euros were awarded to Baxter” (Paull, 2015).To summarize, the judge declared no nuisance, no negligence, no injunction, and in practical terms, no damages. “Liability for these costs has been appealed. At the time of writing, Marsh has not paid this to Baxter, and it appears that Baxter has not paid this to his lawyers. The results of appeals against the judgement, and against the awarding of costs are awaited. The legal avenue in this case is the High Court of Australia.” (Paull, 2015).Restating the Problem & Causes“It is impossible to anticipate all risks-especially in the long term, but uncertainty is not admitted and not taken into account in the decision-making process” (Marris, 2001). The farms of Baxter and Marsh adjoin one another with a road separating them. In 2010, Baxter planted GMO canola next to Marsh’s organic one after its commercial production was authorized by the government of Australia.In November of 2010, Baxter swathed his GMO canola and allowed it to dry for a period of three weeks before harvesting. During that time, the wind blew approximately 245 swatches with attached seed pods-containing viable canola seeds, into several sections of the Marsh farm. On December of the same year, Marsh was notified by his organic certifying agency that several paddocks of his farm were decertified-as they did not meet the minimum threshold requirements, causing him multi-year economic losses that he tried to recover by suing Baxter for being forced to sell the decertified crops at conventional prices rather than the organic premium prices.Marsh sued on charges related to tort, nuisance, and negligence, and also petitioned an injunction prohibiting Baxter from planting GMO canola within certain distance of his farm. The case had a lot of media attention, as Baxter was backed by Monsanto-now owned by Bayer by the time of the release of this paper, the Company that had the patents on the GMO canola. The Court dismissed the three causes of action, not only ruling in favor of Baxter, but also reserving the issue of costs for further legal proceedings.Possible Alternatives“To date there is no satisfactory resolution to the grievances of Marsh, and the outcomes so far provide no assurances to the organics sector that GMO is not a threat to the viability of their agricultural practices and their business model” (Paull, 2015). It is important to mention that during the initial trials, it was shown by scientific evidence that none of the canola crops from Marsh could acquire any genetic traits of GMO canola. As a result, the ~245 swathes found on Marsh’s farm were labeled as an “intrusion” event rather than a “contamination” one.Potential alternatives to stay away from “intrusion” events could include implementing risk mitigation practices to avoid GMO canola swathes unintentionally getting into Marsh’s farm because of nature elements. That kind of event could be minimized or eliminated by voluntarily adhering to the traditional method of canola harvesting (beheading the crop and harvesting the seeds immediately). If voluntary compliance is not an option, let’s not forget that “South Australia currently has a moratorium on the commercial cultivation of GM food crops which is scheduled to continue until 2025” (Anderson, 2019). New local regulations could be deployed to override the existing moratorium and prevent GMO farmers who are in close proximity to organic lands from using harvesting methods that could pose either direct or indirect risks to the organic certification(s).Another major outcome of the court decision was the Judge’s strong comment implying the party to be sued for damages should have been the organic certifier NASAA (The National Association for Sustainable Agriculture in Australia), by having unrealistic organic standards based on a zero-tolerance requirement which was different than most standards from other agencies across the world. “The courts found that the decertification due to contamination was a ‘gross overreaction’ on the part of the agency. The organic farmer was told he should instead sue the organic certification body” (Kym, 2015).A potential alternative to the NASAA zero-tolerance requirement could be having more than one regional organic-certification agency and selecting the one for certification that better align to the realities of the local dynamics and export regulations. Standards should be pursued in alignment with the definition and thresholds determined by the top certifiers in the world. “Doing a cost-benefit analysis that considers liability based on organic certification standards and property damage, not on normative ideas of what a politically appropriate level of contamination is, ought to be included as a fundamental phase in the assessment process” (Kym, 2015).The last potential alternative discussed on this paper consists of taking a totally different approach to the situation by leveraging the common ground between Marsh & Baxter-instead of focusing on the areas of confrontation. Together they could run combined pilots, based on independent research and driven by experts on both sides of the organic versus GMO spectrum, as a way to explore options and agreements on what cops to harvest and where, the distance between them, and potential innovations to the harvest process. This collaborative approach could result into a potential partnership that could not only improve their communication and business operations visibility, but also translate into new marketing strategies in which both could benefit. The potential social impact of GMOs-especially on underdeveloped countries, should not be minimized or ignored under the stigma of being ‘evil’ due to the unfortunate approach the Company holding the patents on this case took to promote and defend their products.Analysis and RecommendationThe following “Pros & Cons” table summarizes the potential alternatives to the Marsh vs. Baxter case study.“Perhaps the importance of good communication is best understood by considering what things would be like in its absence (“Reference for Business.” n.d.). The recommended path forward consists primarily on leveraging the common ground between Marsh & Baxter instead of focusing on the areas of confrontation. Although this could provide the perception of a defeat to organics and validating GMOs as a safe food option that does not require further research, it is not about that, but about balancing innovation with the realities of a world that is changing and need collaborative solutions in the pursue of sustainable solutions not only for our generation, but for the ones to come.As per Watt (2014), the first step in the stakeholder’s management process is to identify the main stakeholders, followed by performing an analysis of the stakeholders’ potential for threat, cooperation, and what strategy to adopt. Under the right mediation, Marsh & Baxter could be able to address their differences in a mature way, leaving behind an unfortunate chapter of legal actions that did not result in anything beneficial for most customers from both sides. The second recommended action consists of the Government approving more than one regional certification agency-with potentially different requirement thresholds. Instead of being seen as a threat against the organic movement, this should be seen as an opportunity to trigger conversations against the different organizations toward the goal of global consistent standards.Recommended Implementation PlanThe high-level recommended implementation plan & steps would look like this:1. During the first two to four weeks, Marsh & Baxter call up their Legal teams to meet and consider dismissing pending legal actions still in progress. Once agreements are reached, they will communicate to the Court a proposal on how they would like to proceed.2. Both teams agree on a mutually-selected entity that will pursue neutral funding and conduct independent research on both sides of the organic and GMO spectrum to discuss and come up-within a six-months period of time, with recommendations such as-but not limited to, what crops to harvest and where, and changes to harvest processes.3. In parallel, the Government of Western Australia should authorize additional organic certification agencies. This will be part of a new comprehensive effort to align and standardize as much as possible the certification requirement thresholds to the dynamics of the real world-while educating as necessary and appropriate the end customers.4. Implementation takes place based on a structured Legal and Project execution management framework. Learnings are documented and discussed through a newly created governance team.5. Mash & Baxter share their learnings on how to facilitate the co-existence of GMO and organic farming through conferences and seminars. Any proceedings from those meetings should be reinvested in more related research.Conclusion“Expanding the definition of risk assessment to include social and economic impacts would likely incorporate some concerns that organic and integrated pest-management farmers have about gene flow contamination, however this will never be enough to avoid all future liability” (Kym, 2015). Focusing on the common ground instead of having a confrontational attitude toward the differences should open the doors to a new era of research, collaboration, and innovation-in which both Mash and Baxter could return to focus and mutually benefit from what they really enjoy doing, which is farming. With additional research, as well though a renewed sense of global citizenship in a world full of unanswered questions, GMOs could represent much more than just a business opportunity or threat, but an agent of change with a social impact that could translate into new solutions to complex issues such as how to feed a world with limited resources and a growing exponential population. There are infinite shades of grey between what some people would consider either white or black. It is up to us as custodians of the resources of the generations to come to be able to put aside our differences to objectively focus on a future full of alternatives within an ethical framework in which each one of us have a voice and the power to influence the whole.ReferencesCBAN. (2015). Where in the world are GM crops and foods? The reality of GM crops in the ground and on our plates. Ottawa, Canadian Biotechnology Action Network (CBAN). Retrieved from https://gmoinquiry.ca/wp-content/uploads/2015/03/where-in-the-world-gm-crops-foods.pdfKym, S. (2015). Legally Containing the Uncontainable: Establishing a Liability Scheme for GE contamination in Canadian Agriculture. York University. https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/30218/MESMP00091.pdf?sequence=1&isAllowed=yMarris, C. (2001). Public views on GMOs: deconstructing the myths. European Molecular Biology Organization. EMBO reports vol. 2 | no. 7, pp. 545–548. https://www.embopress.org/doi/pdf/10.1093/embo-reports/kve142Paull, J. (2014). Organic versus GMO farming: Contamination, what contamination? Journal of Organic Systems, 9 (1), pp. 2–4. Retrieved from https://orgprints.org/26549/7/26549.pdfPaull, J. (2015). The threat of genetically modified organisms (GMOs) to organic agriculture: A case study update. Agriculture & Food, 3, pp. 56–63. https://orgprints.org/29110/8/29110.pdfReference for Business. (n.d.). Communication in organizations. http://www.ref- erenceforbusiness.com/encyclopedia/Clo-Con/Communication-in-Organizations.htmlWatt, A. (2014). Project Management. Licensed under the Creative Commons Attribution 4.0 Unported License. https://opentextbc.ca/projectmanagement/Willer, H. and Lernoud, J. (2019). The World of Organic Agriculture. Statistics and Emerging Trends 2019. 20th Edition. Research Institute of Organic Agriculture FiBL and IFOAM Organics International, Frick and Bonn. Retrieved from https://orgprints.org/37018/1/willer-lernoud-2019-world-of-organic-low.pdf
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