Bill Text: IL SB2151 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2009-03-13 - Rule 3-9(a) / Re-referred to Assignments [SB2151 Detail]

Download: Illinois-2009-SB2151-Introduced.html

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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.
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A BILL FOR
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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.

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"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

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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

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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

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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

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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

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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

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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.

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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

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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.