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Monsanto's fight against a ban on one of its herbicides is moot because such a ban isn't in place, the state argued in court filings this week.

Gary Sullivan, a state assistant attorney general, said the St. Louis-based seed company is asking a court to "prevent a state agency from performing its statutorily authorized duty to regulate an herbicide that has been shown to cause devastating harm to the majority of Arkansas's soybean and cotton farmers' crops, and to other agricultural crops, ornamental and fruit trees, and beneficial insects."

Monsanto sought preliminary and permanent injunctions Dec. 5, as part of a lawsuit filed in October against the state Plant Board. The company amended the lawsuit Nov. 17, to reflect the board's decision nine days earlier to prohibit the in-crop use of dicamba from April 16 through Oct. 31 next year.

However, lawmakers last week kicked the proposal back to the Plant Board for reconsideration.

Without a ban in place, "Monsanto's claims are moot," and its allegations of financial harm "rest on contingent future events that may or may not occur," Sullivan wrote in the state's response Tuesday to Monsanto's request for injunctions.

On Wednesday, Sullivan and Monty Baugh, a deputy attorney general, also filed the state's response to the overall lawsuit, asking that it be dismissed. Both filings made similar arguments: that Monsanto hasn't suffered "irreparable" damage and that the Plant Board acted within its authority.

Pulaski County Circuit Judge Chris Piazza set a hearing for Jan. 16, but the state this week asked that it be rescheduled because its expert witnesses -- weed scientists -- are part of an agriculture conference in North Little Rock that week.

The Plant Board, meanwhile, has scheduled a 1 p.m. meeting Jan. 3 to consider its options, with its pesticide committee to meet three hours earlier.

Monsanto began developing dicamba-tolerant cotton and soybeans as pigweed and other weeds grew resistant to other herbicides.

U.S. regulators allowed new dicamba formulations -- by Monsanto, BASF and DuPont -- to be sprayed on the new Monsanto seed crops for the first time in 2017. However, other varieties of soybeans and fruits, vegetables, peanuts, backyard gardens, and ornamental shrubs and bushes can be harmed if dicamba moves off target.

The Plant Board received nearly 1,000 complaints about dicamba moving off target this year, prompting a 120-day emergency ban on all in-crop dicamba use. The ban took effect July 11, and the Plant Board began studying what to do for the 2018 crop year.

Monsanto hasn't cited a dollar figure in its claims "of losing sales" every day in Arkansas, of either its dicamba herbicide or its seed. Of the 3.3 million acres of soybeans in Arkansas this year, 1.5 million acres were planted with its dicamba-tolerant beans, the company said. Of the half-million acres of Arkansas cotton this year, some 300,000 acres were planted with Monsanto's dicamba-tolerant version.

The April 16-Oct. 31 prohibition was aimed at preventing damage to crops and other vegetation susceptible to dicamba. Because soybeans typically are planted in May, the board saw other cutoff dates -- such as May 25 or June 1, as proposed by some farmers -- as measures that would limit damage but not prevent it.

The tendency for off-target movement of dicamba increases with the rise in temperature and humidity, but Monsanto and other manufacturers say their new dicamba formulations are less volatile than older dicamba products used for decades around the farm and home.

Monsanto, which opposes any cutoff dates, has said applicator error, not a product's volatility, caused most of the problems in Arkansas and other states this year. A few of those states also have set cutoff dates, based on temperature or on the calendar.

In its lawsuit, Monsanto also took issue with the Plant Board's practice of not registering products in Arkansas until they've been studied by scientists with the University of Arkansas System's Agriculture Division.

In the case of Monsanto's new dicamba formula, called Xtendimax with VaporGrip, the company allowed UA scientists to study its efficacy as a weedkiller but not for any tendency to move off target, whether by physical drift as it is being sprayed or as a vapor hours or even days after application. (Weed scientists in other states also weren't allowed by the company to study the chemical's off-target tendencies.)

Monsanto has said the regulation requiring the UA study was unwritten, inconsistently applied and violated federal law on interstate commerce. The company also said the Plant Board ignored, or paid too little attention to, 14 studies and tests submitted by Monsanto to the federal Environmental Protection Agency when it was seeking registration for its dicamba.

Because of the lack of study, the Plant Board refused to issue a label in Arkansas for Monsanto's Xtendimax this year. Only BASF's Engenia was allowed, because UA scientists had studied that dicamba formula for efficacy and volatility, although on a limited basis.

Sullivan wrote in his filing that Arkansas law gives "broad powers" to the Plant Board in regulating pesticides and herbicides.

"It is a reasoned and reasonable conclusion -- not an arbitrary or capricious decision -- that research conducted by out-of-state scientists or by researchers unfamiliar with Arkansas' unique climate and growing conditions would be less valuable to the board than research conducted by university scientists in Arkansas," he wrote.

When Monsanto's lawyer in Arkansas, Scott Trotter of Little Rock, amended the original lawsuit on Nov. 17, the company claimed that the composition of the Plant Board was unconstitutional, an allegation first made by a group of farmers in a similar lawsuit in Pulaski County.

The board has 16 voting members, nine of whom are appointed by groups representing various facets of Arkansas agriculture, including chemical manufacturers. The governor makes seven appointees.

While the board does have "private individuals" among its members, its recommendations on changing pesticide and herbicide rules still must go to the governor and then be reviewed by lawmakers, Sullivan wrote.

Sullivan also said the state's 1874 constitution is clear in that the state has sovereign immunity and can't be a defendant in its own courts. Even if Monsanto has a quantifiable claim for financial damages, it should seek compensation through the Arkansas Claims Commission, he said.

Business on 12/21/2017

Print Headline: Suit on dicamba ban moot, state says

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