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Dicamba firm says its suit against Arkansas Plant Board is still valid

by Stephen Steed | January 24, 2018 at 4:30 a.m.

Monsanto's lawsuit against the state Plant Board for its decisions regarding dicamba use is still valid despite a court ruling last week reiterating the state's immunity from lawsuits, the company said in filings this week.

Because the board acted illegally the past three years in denying Monsanto's new dicamba formulations, it is exempt from the Arkansas Supreme Court's declaration last week upholding the doctrine of sovereign immunity, Scott Trotter, a Little Rock lawyer, wrote Monday.

Pulaski County Circuit Judge Chris Piazza has set a hearing for Feb. 16 to consider Monsanto's request for permanent and preliminary injunctions against the Plant Board and the state's request that the lawsuit be dismissed.

The state attorney general's office, which is representing the Plant Board, seeks dismissal of the suit for several reasons, including sovereign immunity. The state also said Monsanto hasn't suffered any economic damage but, if it has, then the state Claims Commission would be the appropriate venue to consider it.

In a 5-2 decision, the court voted Thursday to uphold a provision in the Arkansas Constitution of 1874 stating that the state "shall never be made defendant" in any of its courts. The court said lawmakers in 1996 approved legislation illegally waiving immunity in certain cases.

"The General Assembly does not have the power to override a constitutional provision," Chief Justice John Dan Kemp wrote for the majority.

Pulaski County Circuit Judge Tim Fox on Monday cited the Supreme Court's ruling in dismissing a case filed by property owners in Cleburne County against the state Oil and Gas Commission. The landowners had appealed an earlier decision by the commission, citing the state Administrative Procedure Act, which governs the rules-making authority of state boards and commissions and sets forth how that authority can be challenged.

While Monsanto has questioned whether the Plant Board has abided by the act, Trotter wrote in his court filings that the Supreme Court decision last week allowed an exception for cases "when the state agency is acting illegally."

"Because the State's authority is prescribed by law, an agency acting unlawfully is not acting as the State -- and a suit to enjoin its unlawful action is not a suit against the State," Trotter wrote.

Citing a 1944 Arkansas Supreme Court ruling not referred to in last week's Supreme Court decision, Trotter wrote, "No money judgment is sought against the state -- only the enjoining of allegedly void rulings."

In 2016, the Plant Board refused to allow Monsanto's Xtendimax with VaporGrip into the Arkansas market, citing a requirement that new pesticides and herbicides be tested for at least two years by weed scientists with the state. Monsanto said such a rule was unwritten, was applied inconsistently and violated federal commerce law.

Weed scientists were allowed by the company to study the chemical for its effectiveness against weeds but not for any tendency to move off target and hurt susceptible crops.

Unless there's a courtroom victory, the Monsanto dicamba -- and others manufactured by BASF and DuPont -- also will not be allowed this year for in-crop use on dicamba-tolerant cotton and soybeans. The Plant Board set an April 16-Oct. 31 ban on spraying dicamba on those crops, effectively removing the new formulations as a weapon against pigweed, which is now resistant to other herbicides.

The Plant Board's decision came after it received nearly 1,000 complaints of dicamba damage last summer to soybeans, fruits, vegetables, backyard gardens, and ornamental shrubs and trees that are not tolerant of the herbicide. Only BASF's Engenia herbicide was allowed in Arkansas last year.

While Monsanto said both decisions by the Plant Board prevented or threatened sales of its herbicide and dicamba-tolerant seeds, the company hasn't given a financial estimate of those losses.

Those losses are ongoing, and the state's argument that the case should be before the Claims Commission is "frivolous" because Monsanto seeks judicial relief, not financial damages, Trotter wrote.

Trotter also said that even if the 2018 cutoff date is thrown out in circuit court, the Plant Board's regulations will revert to the 2016 rule that kept Xtendimax out of Arkansas, continuing Monsanto's financial losses.

Monsanto also said the composition of the Plant Board, with its mix of appointees named by the governor and other members selected by agriculture trade groups, is unconstitutional because the panel isn't accountable to anyone.

The state said last month in a court filing that the Plant Board "cannot make rules without approval" of the governor and the Legislature.

Trotter said that wasn't true. The governor reviews proposed actions by state agencies and boards through executive order, not state law, and lawmakers don't have a direct vote on those proposals, Trotter wrote.

The April 16-Oct. 31 cutoff date was "reviewed" by lawmakers last week and allowed to proceed after lawmakers were unable to find the new regulations to be in conflict with state or federal law or legislative intent.

The Monsanto lawsuit is case 60CV-17-5964. A group of Arkansas farmers has filed a similar suit against the Plant Board, 60CV-17-6539, but no hearings have been set.

A Section on 01/24/2018

Print Headline: Dicamba firm says its suit is still valid; State immunity off mark, it says


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