The state has asked two circuit judges to dissolve their decisions last week effectively allowing about 200 Arkansas farmers to escape a ban on spraying dicamba that is now in place for the rest of their farming peers.
The farmers in both cases -- in Mississippi and Phillips counties -- had no legal standing to intervene against a ban that had been discussed for months before taking effect Monday, the attorney general's office said.
Circuit Judges Tonya Alexander, in Mississippi County, and Christopher Morledge, in Phillips County, issued temporary restraining orders on Thursday and Friday, respectively, in favor of about 200 plaintiff-farmers involved in the two cases.
The ban runs through Oct. 31 but, as of now, has no practical effect because farmers across the state are so early into their planting seasons. In-crop use of dicamba usually starts in May, after cotton and soybean plants have emerged but before pigweed, now resistant to other herbicides, gets big enough to pose a threat to crops' reproduction and to yields.
The Plant Board last summer received 997 complaints of dicamba damage to crops, produce, fruit and other vegetation not tolerant of the herbicide.
As of June 8 last year, the board had received just 25 complaints, but weed scientists warned that the numbers would grow because the herbicide's tendency for off-target movement increases with the rise in temperature and humidity. The number of complaints grew to 207 on June 21 and to 633 on July 11, when a 90-day emergency ban went into effect for the rest of the season.
The office of Attorney General Leslie Rutledge, representing the Plant Board, said temporary relief is intended "only to those who are vigilant in asserting their rights." The 200 or so farmers didn't challenge the Plant Board when it was considering the dicamba ban, "rested on their laurels until ... just days before" the ban was to take effect, and "should not be rewarded for their intentional delay," the attorney general said.
Alexander and Morledge said the farmers, without injunctions or restraining orders, would suffer irreparable harm from the Plant Board's ban on the in-crop use of the herbicide. The two judges issued the restraining orders the same day the two lawsuits were filed ex parte, meaning without the state being notified of the lawsuits. Only the farmers named in the lawsuits are covered under the judges' rulings.
Both judges will hold hearings on the attorney general's motion to dissolve their restraining orders. One has been set so far -- in the Phillips County case, on Thursday.
Last Friday, the Arkansas Supreme Court halted a Pulaski County circuit judge's exemption of six farmers from the dicamba ban. The six had challenged the Plant Board's proposed ban through a legal process called a petition for rule-making and asked for a compromise cutoff date of May 25. The six sued after the board rejected its petition in November.
Pulaski County Circuit Judge Tim Fox said the six farmers' rights to due process -- to appeal the board's rejection of their compromise petition -- were curtailed when the state Supreme Court said in January that the state cannot be made a defendant in its own courts.
Because of those farmers' efforts, Fox declared the dicamba ban "null and void" only for them, a decision that the Supreme Court halted without comment.
The attorney general's office also said the circuit judges in Mississippi and Phillips counties failed to comply with court procedures by failing to describe what injuries would be suffered by the farmers, state why the damage is irreparable, or explain why the restraining orders were issued without notice to the state.
The attorney general also said temporary restraining orders are generally only good for 14 days but that Alexander and Morledge erred in saying they'd be in place "until a final decision on the merits" of the farmers' lawsuits against the Plant Board.
The farmers also have suffered no injury, the attorney general's office said, because "there are currently no growing crops." Speculation on the amount of damage, the office said, doesn't count.
Business on 04/17/2018