Dicamba Legal Quandary

Legal Action Gives Some Arkansas Farmers Access to Dicamba

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
Connect with Emily:
Arkansas' in-season ban on dicamba is temporarily void for nearly 200 farmers after judges issued restraining orders of the ban for them. (DTN photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- Arkansas' in-season ban on dicamba does not apply to a group of nearly 200 farmers who have obtained temporary restraining orders on the ban from state judges.

Three judges in Clay, Mississippi and Phillips counties have filed temporary restraining orders (TROs) of the ban in the past week, in response to last-minute complaints filed by nearly 200 farmers. In Greene County, a judge will hold a hearing on Friday on the status of an additional restraining order for 13 farmers.

Clay, Mississippi and Greene counties are in extreme northeast Arkansas; Phillips is in the east central portion of the state. All are key soybean producing counties.

The office of Arkansas Attorney General Leslie Rutledge is in the process of appealing those decisions to the state Supreme Court, Nicole Ryan, communications director for the attorney general, told DTN.

But for now, nearly 200 farmers can legally spray dicamba under the temporary restraining orders, Ryan confirmed.

"The (Arkansas State) Plant Board will enforce the federal label requirements for the group spraying dicamba, while the Mississippi and Phillips county TROs are in place," she said. The attorney general will be seeking "expedited stays," from the Supreme Court, which would halt the judges' rulings until the appeals are decided, she added.

In addition to BASF's Engenia herbicide, Monsanto's XtendiMax herbicide is currently registered in Arkansas for use on Xtend soybeans and cotton. However, Monsanto has opted not to sell it there for the time being, Monsanto spokesperson Kyel Richards said in an email to DTN.

"Our goal is to make XtendiMax with VaporGrip Technology available to growers in Arkansas who truly need this weed-control tool, but we need a stable and predictable political environment before we are able to do that," he said in the email.

The Arkansas State Plant Board decided to ban dicamba use on Xtend crops from April 16 through Oct. 31 after receiving 997 complaints of dicamba injury to soybeans and other crops and plants in 2017.

Whether the farmers with restraining orders will actually apply dicamba is uncertain, given that the state's appeal process could halt their access to it in a matter of weeks. Moreover, planting is still underway in Arkansas, with only 10% of soybeans planted as of Monday, according to USDA Crop Progress reports.

Here's a summary of the current state of the many legal cases brought by farmers against the Arkansas State Plant Board regarding dicamba use:

THE MISSISSIPPI, PHILLIPS, CLAY AND GREENE COUNTY CASES

Eighty-five farmers filed a last-minute complaint against the plant board on April 12 in Mississippi County, Arkansas, demanding that the dicamba ban be voided immediately. Their lawyer, David Burnett, argued that the plant board itself was an unconstitutional entity that does not deserve legislative capabilities, because it contains unelected members appointed by private individuals.

Just one day later, Second Judicial Circuit Court Judge Tonya Alexander viewed the complaint and issued a temporary restraining order of the ban, stating that, "the Plaintiffs face the immediate, irreparable harm to their crops."

The same process played out for the farmer complaints filed in Phillips and Clay counties.

The Phillips County case involved 70 farmers and resulted in a temporary restraining order from First Judicial Circuit Judge Christopher Morledge. The Clay County case involved 38 farmers and resulted in a temporary restraining order from Second Judicial Circuit Judge Randy Philhours.

In Greene County, 13 farmers brought a similar complaint against the plant board, and a hearing on their request for a restraining order will be held Friday, April 20, Ryan said.

The Arkansas Attorney General's office is racing to address this wave of last-minute legal action. In addition to appealing the cases to the state Supreme Court, the attorney general has issued motions to dissolve the Phillips and Mississippi County restraining orders, arguing that no immediate damage is posed to the farmers' crops.

"The Plant Board rule was approved by both the Governor and the General Assembly and, as such, Attorney General Rutledge has a duty to defend against the challenges that have been brought against it," Ryan said.

"THE ARKANSAS 6"

Last week, the state's Supreme Court ruled that the six Arkansas farmers who filed a lawsuit against the Arkansas State Plant Board will not have access to dicamba for now.

Previously, Judge Tim Fox had dismissed the farmers' lawsuit on March 30 based on an earlier Supreme Court ruling that state agencies like the Plant Board have sovereign immunity -- that, is they can't be sued.

But Fox also ruled that, because the dismissal violated their due process rights, the ban did not apply to these six farmers. The state immediately appealed that ruling to the state Supreme Court, which granted a stay of the judge's order. That means the farmers will not be able to use dicamba on Xtend crops until the appeal is decided, which can take up to eight months.

"The Arkansas Supreme Court's stay of Judge Fox's ruling means that the Court believes the Plant Board is likely to win on appeal, which is another reason why the other two circuit courts need to vacate their temporary restraining orders," Ryan told DTN.

The farmers and their attorney, Grant Ballard, have indicated that they will continue to file appeals.

See DTN's previous coverage of this case here and here.

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her on Twitter @Emily_Unglesbee

(GH/AG)

Emily Unglesbee