Six farmers in state get judge’s OK on dicamba

Six Arkansas farmers — and no others — will be allowed to spray dicamba on their crops this summer while their colleagues remain under a statewide ban on the herbicide, according to a judge’s ruling Friday.

The six farmers had sued the state Plant Board in November for actions it took in ultimately banning incrop use of dicamba from April 16 through Oct. 31.

“The ban is null and void only for those six farmers,” said Grant Ballard, a Little Rock attorney for the farmers.

Pulaski County Circuit Judge Tim Fox dismissed the lawsuit itself, citing the Arkansas Supreme Court’s ruling in January that the state, under the sovereign immunity clause in its 1874 constitution, cannot be made a defendant in its own courts.

However, Fox said that ruling also effectively curtailed the farmers’ rights to due process and their right to appeal the Plant Board’s ban.

The state “has the abso-

lute right” to claim sovereign immunity but doing so gave the farmers “no opportunity” to seek relief from the Plant Board’s decision, Fox said.

“The constitution requires some sort of remedy for damage,” Ballard said. “That’s a fundamental part of due process. Long story short, the judge said there was no remedy for us, that our clients’ due process rights were violated and, as a consequence, the ban was void ab initio [from the beginning], like it never occurred.”

Because the farmers’ lawsuit wasn’t a class-action filing, Fox’s ruling affects only those six farmers and allows them to spray dicamba if they want, Ballard said.

“The complaint was dismissed but, at the same time, we received some significant relief,” Ballard said. “I wish there’d be relief for all farmers who would use this [dicamba] technology responsibly.”

Attorney General Leslie Rutledge, whose office represented the Plant Board, said in a statement, “I am pleased that Judge Fox dismissed the plaintiffs’ claims but disappointed in his decision to except the plaintiffs from the Plant Board’s rule.” Rutledge said she will consider the office’s next steps after Fox issues his written order.

Fox called the case one of “literally a plethora of cases that involve the evolving sovereign immunity doctrine.”

“And so, what we’re going to have is … lots of decisions by lots of trial judges that may or not may not be in disagreement in probably every one of the 75 counties” in Arkansas, Fox said.

“I am happy that I and the others now have the option — and I stress ‘option’ — that at least we can use dicamba if need be,” said Perry Galloway, a Woodruff County farmer and one of the six who sued the Plant Board.

He said he didn’t know yet whether he would use the herbicide. Within hours of Fox’s ruling, he said, he called weed scientists and other experts and asked them “to come to my farm if we make an application and help us monitor everything we do and make sure we do everything right.”

Galloway said farmers need dicamba. “I think we can make this technology work,” he said.

Galloway said he wasn’t certain how other farmers — many of whom lobbied hard for the dicamba ban after sustaining injury to their crops last year — will react to Fox’s ruling allowing just the six to spray the herbicide. “I would think the Plant Board’s telephones are ringing a lot today and certainly will on Monday because, as the judge said, this isn’t a class-action suit and it’s not a class-action remedy,” Galloway said.

The five other plaintiffs — Michael McCarty, Matt Smith, Greg Hart, Ross Bell and Becton Bell — farm primarily in Mississippi and Crittenden counties.

The lawsuit came after the six also had filed a formal petition for “rule-making” asking the board to reconsider the proposed ban. As required by law, the board considered, but then rejected, the petition Oct. 19. The farmers had asked for a compromise cutoff date of May 25, which would have allowed farmers to spray their crops with dicamba at least once during the growing season and before herbicide-resistant pigweed could take over.

The Plant Board received nearly 1,000 complaints of dicamba damage last summer to soybeans, vegetables, backyard gardens and shrubs and trees, and set the April 16 cutoff date as a measure of protection for crops not tolerant of the herbicide. Only Arkansas has such a ban. The state also has increased from $1,000 to $25,000 fines for egregious violations of pesticide law, including for illegal spraying during the April 16Oct. 31 period.

The farmers’ lawsuit was often overshadowed throughout the winter by a similar lawsuit filed against the Plant Board by Monsanto, which developed dicamba-tolerant soybeans and cotton as pigweed grew resistant to other herbicides.

It also developed new formulations of dicamba that were designed to be less susceptible to off-target movement.

The Plant Board, however, has refused to register the new dicamba product, called Xtendimax. Only a product by BASF, called Engenia, was allowed in Arkansas last year for in-crop use.

Monsanto’s lawsuit was dismissed in February by Pulaski County Circuit Judge Chris Piazza, who also cited the Supreme Court’s ruling on sovereign immunity.