A Crittenden County circuit judge on Thursday issued a temporary restraining order against the state Plant Board for its approaching ban on dicamba, a weedkiller linked to crop damage last summer.
Judge Tonya Alexander issued her ruling while holding court in Osceola, in Mississippi County, a short time after David Burnett, an Osceola attorney, filed the motion on behalf of about 85 east Arkansas farmers and farming entities. Both Mississippi and Crittenden counties are in the state's 2nd Judicial District.
The Plant Board's cutoff for in-crop use of the herbicide is set to take effect Monday and run through Oct. 31.
Burnett, a former state senator and prosecuting attorney, filed his request for a temporary restraining order ex parte, or without notifying the attorney general's office, which is representing the Plant Board. He also filed the motion in Mississippi County rather than in Pulaski County, which generally is the venue for actions against the state. Both procedures were proper and allowed by Arkansas law, Burnett said.
In a statement, the attorney general's office said, "Although we were not served with a complaint and had no knowledge of the judge's action in this case, we have obtained a copy of the temporary restraining order and the plaintiff's filings and are reviewing them."
Alexander, who was elected circuit judge in the Marion division in 2016, said the farmers "face the immediate, irreparable harm to their crops" without the restraining order. The harm from not being able to spray dicamba against weeds now resistant to other herbicides outweighs any injury to the state, she said.
The Plant Board adopted the ban on the in-crop use of the weedkiller after receiving 997 complaints last summer of crop damage, primarily to thousands of soybean acres not tolerant of dicamba. Other complaints were of damage to fruits, vegetables, backyard gardens and ornamental trees and shrubs.
As pigweed grew resistant to other herbicides, Monsanto developed dicamba-tolerant soybeans and cotton and new formulations of dicamba that were supposed to be less susceptible to off-target movement, whether during application or in the hours afterward.
Weed scientists in Arkansas and other states where similar damage was reported said their studies showed that the herbicide lifted off sprayed plants as a vapor many hours after application and moved to susceptible crops miles away. Monsanto attributed most of the damage to errors by applicators.
Burnett said most of the clients are from Mississippi, Poinsett and Crittenden counties, the source of more than half of the 997 complaints.
Alexander's ruling affects only the plaintiffs named in Burnett's filing and comes as the Arkansas Supreme Court studies another circuit judge's ruling related to the dicamba ban.
Pulaski County Circuit Judge Tim Fox on March 30 exempted six Arkansas farmers from the dicamba cutoff.
Fox said the six farmers' rights to due process had been curtailed by the Supreme Court's ruling in January that the state cannot be made a defendant in its own courts.
The six sued the Plant Board in November after challenging the ban through a formal process called a petition for rule-making. The sovereign-immunity ruling cut off the six farmers' rights to an appeal, Fox said.
The attorney general's office has asked the court to stay Fox's exemption for the six farmers by Monday.
Burnett said he began working on the case last week after being approached by a couple of farmers. "I cobbled a complaint together," Burnett said, adding that he largely relied on court filings written by Grant Ballard, a Little Rock attorney for the six farmers affected by Fox's ruling in circuit court.
"My feeling is, our farmers were denied rights to appeal, too," Burnett said. "If you're barred from suing state boards and agencies, what do you do? When you raise a constitutional question that doesn't involve monetary damages, you ought to have a right do redress your grievances."
Asked about the quick action Thursday, he said, "I knew Judge Alexander had civil court scheduled in Osceola this week and asked her yesterday for a hearing this morning. I was fortunate in the timing."
Business on 04/13/2018