Stung by a $600,000 lawsuit settlement with potato growers, North Dakota's Seed Department is promoting legislation to shield the agency from liability for seed certification problems.

Critics say the Seed Department's move is risking North Dakota's reputation as a seed potato exporter, and rendering certification almost meaningless.

"They're leaving the farmers holding the bag," says Sarah Vogel, a Bismarck attorney and former state agriculture commissioner. "If the state Seed Department is negligent, they're saying, 'We can't be held liable. Farmers can, but we can't.' I think that's wrong."

The agency is sponsoring a bill, which is being considered in the North Dakota House, to change state law's definition of seed certification. Under the change, certification would not provide any assurance that the seed variety listed on the label is accurate.

On the other hand, Vogel says, farmers must label the seed they sell, and must stand behind the information on it.

Ken Bertsch, North Dakota's seed commissioner, said under the state's existing law, the Seed Department can be held responsible for problems it didn't cause.

If the department certifies a farmer's seed as a certain variety, and a farm mix-up results in the farmer advertising the seed as another variety, the department could end up in legal trouble, Bertsch said.

"I would maintain we shouldn't be held liable for anything other than what we control … because accidents happen," Bertsch said.

The bill was prompted by a lawsuit against the Seed Department that was settled out of court a year ago. Vogel represented farmers in Minto, N.D., and St. Cloud, Minn., who said they were damaged when the Seed Department failed to properly identify a potato variety.

The lawsuit was settled for about $600,000, Vogel said. The Seed Department admitted no negligence in the settlement.

North Dakota and Minnesota were the nation's fourth- and sixth-largest potato producers last year, with 25.5 million hundredweight and 20.4 million cwt in 2006, the U.S. Agriculture Department says. Idaho and Washington were the leading producers.

Bertsch said the problem happened because the potato seed was a "strain" of its certified variety. The seed lot, which was developed in Minnesota, had been misidentified, Bertsch said.

"True varieties you can test fairly reliably," he said. "Strains, or clones, you cannot."

Robert Coltman, director of Wisconsin's seed potato certification program, said the industry lacks some genetic tools, and Wisconsin's program may have been at the same risk as North Dakota's had the lawsuit happened in Wisconsin.

The issue of who is responsible for a misstated seed variety has not come up in Wisconsin in his 15 years on the job, Coltman said.

"There's a lot in the seed certification process that is based on grower reputation, grower track record," Coltman said. "There are a lot of things that we can't police."

Vogel said she believed the technology to distinguish strains from varieties could be developed if enough money was put into the effort. The bigger issue is the North Dakota Seed Department's apparent unwillingness to shoulder any responsibility, she said.

"Even where something is a clear variety, they're saying, 'We wash our hands,"' she said.

Bertsch said changing the law would not take away protection for farmers, because the Seed Department is not changing how it certifies seed. The change only means the department will not be subjected to lawsuits, he said.

"There could be some opposition from farmers, but I imagine the bulk would be from trial attorneys, because this is narrowing the opening in a door … to opportunity," he said.

Gregg Halverson, who grows seed potatoes near Forest River, said he expects accountability from the Seed Department as a grower.

"They have trained experts. If, in fact, they put their stamp of approval from a variety point of view, (accountability) should be there," he said.

Halverson said if there is a problem on the farm, then the farmer should be responsible. "If I mix something up and put a wrong tag on a load of seed, that's my problem," he said.

Bertsch said the legislation should ensure that happens.

"It should have no impact on the seed industry, really, because technically nothing changes," he said. "Our programs don't change."

Lawrence Schmieding, who owns a produce company in Arkansas and buys potatoes from North Dakota, said the bill could cause a perception problem with out-of-state buyers.

"That's the wrong thing for (the Seed Department) to do," he said. "Right now, (buyers) have got confidence in the seed. They think North Dakota seed is better seed than a lot of areas. They start doing that, it will just ruin their reputation."

Bertsch acknowledged that the bill might scare off some out-of-state buyers.

"But if they've got an inkling of that I hope they talk to me, because the product they're getting is the same product … It's all about how good our seed growers and the seed industry is, and they're very good," Bertsch said.

Coltman said North Dakota's program is respected and likely to remain so.

"It's pretty much mutual among programs across the U.S.," he said. "We respect each other's classifications and programs, and we haven't had any problems with that."

The bill is HB1124.