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Lawsuit against Arkansas panel contests curb on dicamba

Monsanto claims violations of laws by Stephen Steed | October 21, 2017 at 4:30 a.m.

Monsanto, the St. Louis-based herbicide and seed company, filed a lawsuit Friday against the state Plant Board, alleging it violated state law and damaged the company in restricting farmers' access to Monsanto's dicamba-based herbicide the past two growing seasons.

In a lawsuit filed in Pulaski County Circuit Court and assigned to Circuit Judge Mary McGowan, the company asked the judge to set aside a Plant Board regulation that prohibits the in-crop use of dicamba between April 15 and Sept. 15 of each growing season. The board, a division of the Arkansas Department of Agriculture, is considering whether to prohibit the spraying of dicamba next year between April 16 and Oct. 31.

Either set of dates effectively removes dicamba -- such as Monsanto's Xtendimax and BASF's Engenia -- as a tool for farmers in their fight against weeds that have grown resistant to other herbicides. As those weeds evolved, Monsanto genetically engineered its soybeans to be tolerant of dicamba, a common herbicide on farms and around homes for nearly 50 years.

While the new dicamba formulations by Monsanto and BASF are supposed to be less prone to moving off target, the Plant Board this year received nearly 1,000 complaints of damage to non-dicamba soybeans, other farmers' fruit orchards and vegetable crops, backyard gardens, trees and shrubs, and to wild vegetation essential to bees' ability to pollinate.

Similar problems have been reported in other states, though not to the same scale as seen in Arkansas.

"This is about growers," Scott Partridge, a Monsanto vice president, said in a statement Friday. "As a company, we are committed to putting the best tools in the hands of growers to control weeds. Growers in 33 other states are having an outstanding experience with Xtendimax. Growers in Arkansas deserve the same opportunity."

Adriane Barnes, a spokesman for the Arkansas Agriculture Department, declined comment because the Plant Board hadn't yet been served with the lawsuit.

The lawsuit was filed against the Plant Board and its 18 members in their official capacities. Until last month, one of those members was a Monsanto sales representative, Jammy Turner of Gillett in Arkansas County. Turner said then that his resignation had nothing to do with the dicamba controversies in Arkansas. He resigned to take a position on the Arkansas Agriculture Board, which holds no regulatory powers.

Monsanto released its dicamba-tolerant cotton in 2015 and dicamba-tolerant soybeans in 2016 -- before gaining approval from the federal Environmental Protection Agency for the accompanying herbicide. That led to some three dozen complaints of dicamba damage in Arkansas in 2016, as well as an argument that resulted in the fatal shooting in October 2016 of an Arkansas farmer who'd complained of damage to his soybeans.

The Plant Board in November 2016 decided to not allow the Monsanto herbicide into the Arkansas market, in part because its potential to move off target hadn't been studied by weed scientists with the University of Arkansas System Division of Agriculture.

The company had allowed the UA scientists -- and scientists at universities in other states -- to study the chemical's effectiveness against weeds but not its tendency to drift or to lift off leaves and move to neighboring fields hours after being sprayed. The Arkansas ban on Xtendimax was approved by Gov. Asa Hutchinson.

Monsanto said in its lawsuit that the policy requiring UA study is unwritten, unclear and in violation of federal law on interstate commerce. The company also said the Plant Board had refused to consider findings by the EPA when that agency approved a federal label for the herbicide.

The company said the Plant Board repeatedly violated Arkansas law governing how boards and commissions establish their rules and regulations.

The latest proposal -- the ban on spraying the herbicide between April 16 and Oct. 31 -- will be considered by the Plant Board in a public hearing Nov. 8.

The lawsuit Friday, filed by Scott Trotter of Little Rock, wasn't unexpected.

Some of Monsanto's claims repeat those made in a 33-page petition Sept. 7 formally asking the Plant Board to reconsider its dicamba prohibitions. The company said then that it would consider a lawsuit if the board continued to refuse Xtendimax's entry into the Arkansas market.

The EPA last week set new restrictions on dicamba, such as prohibiting nighttime spraying and requiring farmers and applicators to be registered and trained. Arkansas already has similar restrictions and education requirements, and regulators noted that none of those restrictions have an effect on the chemical's volatility.

Business on 10/21/2017

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