East Arkansas judges halt state's ban on dicamba as AG readies appeals | Arkansas Blog

Thursday, April 19, 2018

East Arkansas judges halt state's ban on dicamba as AG readies appeals

Posted By on Thu, Apr 19, 2018 at 2:40 PM

click to enlarge DICAMBA DAMAGE: The herbicide has a tendency to damage nearby crops and trees. - BRIAN CHILSON
  • Brian Chilson
  • DICAMBA DAMAGE: The herbicide has a tendency to damage nearby crops and trees.

Arkansas's battle over dicamba, the controversial herbicide banned recently by the Arkansas State Plant Board, has entered a volatile new stage.

At least four separate legal challenges to the state's ban have now been filed by groups of farmers in four northeast Arkansas counties — Phillips, Mississippi, Greene and Clay — who want to use the herbicide, the office of Arkansas Attorney General Leslie Rutledge confirmed today. Here's the complaint from Mississippi County, which contains the largest number of plaintiffs. (The 85 farmers in that complaint also happen to be represented by David Burnett, the former Democratic state senator perhaps best known for presiding over the trial of the West Memphis Three.)

Circuit judges in Phillips and Mississippi counties sided with the plaintiffs last week, issuing temporary restraining orders against the plant board's ban. The attorney general's office has filed notice that it will appeal to the Arkansas Supreme Court. Meanwhile, judges in Greene and Clay counties will hold hearings on two similar complaints tomorrow morning.

The wave of lawsuits comes in the wake of a March 30 ruling by Pulaski County Circuit Judge Tim Fox that the plant board's dicamba ban did not apply to six plaintiffs. Fox dismissed the suit in light of the state Supreme Court's recent earthquake ruling essentially declaring the state immune from lawsuit, a conclusion reached earlier by another Pulaski County circuit judge. However, Fox then said the Supreme Court's new interpretation of sovereign immunity also meant the farmer's due process rights had been violated, since they essentially had no resource to challenge the state plant board's actions.

Emily Unglesbee, a reporter for the Progressive Farmer, quoted the plaintiffs' attorney, Grant Ballard on Fox's ruling.
"But the judge added that — if that's true — then farmers don't have any opportunity to remedy their damages or appeal decisions of the state plant board, and that is a violation of their due process rights under state and federal constitutions," Ballard said. "So he dismissed the lawsuit, but since that violated these gentlemen's due process rights, he said the order of the plant board is void for these plaintiffs."
When the attorney general appealed, the state Supreme Court then stayed Fox's order. For now, the six plaintiff's in that case cannot use dicamba. But Fox's decision prompted other farmers in East Arkansas to file suits of their own. The state Supreme Court will likely have to weigh in on the temporary restraining orders handed down by Judge Tonya Alexander in Mississippi County and Judge Christopher Morledge in Phillips County.

The latest legal turmoil has attracted national attention from NPR, which reported yesterday on the confused state of affairs among farmers unsure whether to buy dicamba-resistant seed or not. Even farmers who might not want to use dicamba on their own crops will be affected by the decision, since the chemical has a tendency to drift onto neighboring fields. The plant board's ban against dicamba was itself the product of a contentious and convoluted process fought every step of the way by biotech giant Monsanto, which wants a ready market for its dicamba-resistant seed.

For background on the dicamba saga, which has pitted farmer against farmer in the soybean fields of East Arkansas, read David Koon's story for the Arkansas Times last summer.

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