Dicamba Decision Appealed

State's Appeal Could Halt Arkansas Farmers' Access to Dicamba

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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The chances of six Arkansas farmers getting in-season access to dicamba are fading after the state filed an appeal of the judge's ruling on their lawsuit. (DTN/Progressive Farmer photo by Tom Dodge)

ROCKVILLE, Md. (DTN) -- The Arkansas attorney general is appealing the surprise decision by a judge to allow six Arkansas farmers to use dicamba on cotton and soybeans during the 2018 growing season.

As part of the appeal, the state will ask the court to halt the farmers' in-season access to dicamba until the appeal is decided, most likely in the fall, said Jessica Ray, deputy communications director for the Arkansas attorney general's office.

The group of farmers, dubbed "the Arkansas 6" on social media, came into the public spotlight after they sued the Arkansas State Plant Board for its refusal to amend its current ban on dicamba, which runs from April 15 through Oct. 15. Sixth Judicial Circuit Judge Tim Fox dismissed their lawsuit on Good Friday, but made the surprise decision to declare the ban null and void for these six farmers, after ruling that the dismissal violated their due process rights.

The Arkansas attorney general's office immediately filed an appeal with the Arkansas Supreme Court on April 4.

"Judge Fox acknowledged that the Plant Board is immune to suit, but decided to exempt the plaintiffs from the Plant Board's rule," said Ray. "This is a serious legal error, and we have asked the Arkansas Supreme Court for review. The Plant Board's rule preventing the spraying of dicamba was lawful."

The attorney general's office will ask the state Supreme Court to stay the judge's order until the appeal is decided, which can take up to eight months, Ray told DTN.

"But the court will decide in the coming days or weeks whether to stay Judge Fox's order pending the full appeal," she added.

Grant Ballard, the attorney for the farmers, said he will fight that request. "We believe a stay of the order will bar us from applying the product and could inflict financial damages," he said. "We're going to fight them on it, because we obtained some relief and believe we're entitled to it and will try to hold on it."

At this time, the only dicamba product available for in-season use on Xtend soybeans and cotton in Arkansas is BASF's Engenia herbicide.

If the court agrees to the stay, that would effectively squash the Arkansas 6's chances of using Engenia after April 15 in 2018.

The farmers are prepared either way, said Perry Galloway, one of the farmer-plaintiffs, who expects to plant 3,500 acres of Xtend soybeans in east-central Arkansas. "We're prepared for anything," he said. "We can adjust as needed."

The farmers' lawsuit is privately funded by the six farmers, Galloway said.

See the DTN story on Judge Fox's ruling on the farmers' lawsuit here: https://bit.ly/…

You can follow the rollercoaster ride of court decisions on this lawsuit here: https://bit.ly/….

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

Follow her on Twitter @Emily_Unglesbee

(PS/ES/AG)

Emily Unglesbee