Dicamba Drama Continues

ROCKVILLE, Md. (DTN) -- On Monday, Arkansas' in-season ban on dicamba went into effect, but not without some confusion and drama.

Two judges in Phillips and Mississippi counties filed temporary restraining orders of the ban late last week, in response to two separate but mostly identical complaints filed by about 155 farmers. The office of Arkansas Attorney General Leslie Rutledge has filed motions to dissolve these bans and requested hearings on the matter this week.

That leaves the state's dicamba ban for Xtend soybeans and cotton in limbo for those farmers.

The Arkansas Department of Agriculture released a statement on April 13 stating that: "At a minimum we will be enforcing the federal label for pesticide applications until there is more certainty from the court system in interpreting recent decisions. As a reminder, state law provides for the use of civil penalties up to $25,000 for dicamba applications that result in significant off-target damage."

The Arkansas State Plant Board decided to restrict dicamba use in the state after receiving 997 complaints of dicamba injury to soybeans and other crops and plants in 2017. BASF's dicamba herbicide Engenia is registered for use on Xtend soybeans and cotton in Arkansas, but the plant board's rule bans its use from April 16 through Oct. 31.

While Monsanto contends XtendiMax is labeled in the state, the Arkansas State Plant Board refused to confirm to DTN whether XtendiMax could be legally used in Arkansas at any time.

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

THE MISSISSIPPI COUNTY AND PHILLIPS 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."

A nearly identical complaint was filed by about 70 farmers in Phillips County, Arkansas, represented by Kyle Stoner, on April 14. In response, First Judicial Circuit Judge Christopher Morledge also issued a temporary restraining order of the ban that afternoon.

The Arkansas Attorney General's office has issued motions to dissolve both these restraining orders, arguing that no immediate damage is posed to the farmers' crops. Separate hearings on both motions are expected this week, Nicole Ryan, communications director for the Attorney General's office, told DTN.

"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," she 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

(PS/AG/ES)

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