The state Plant Board on Friday cleared a Marked Tree farmer of four counts of violating Arkansas pesticide law, but testimony during a three-hour hearing led the board to focus on his son.
Jimmy McDonald was accused of illegally spraying dicamba across the top of soybeans last year in violation of the April 15 cutoff date, resulting in off-target movement of the herbicide and damage to a neighbor's crop. He also was accused of failure to keep records and complete special training required at the time for applicators who spray dicamba.
Grant Ballard, a Little Rock attorney representing McDonald, said in his opening statement and closing arguments that if any illegal spraying was done -- and he questioned if that had happened -- it was done by McDonald's son, Jason.
They farm as legal and separate entities, and the Plant Board cannot prove that Jason McDonald was an agent or an employee of Jimmy McDonald, Ballard said.
Jason McDonald was visited by Plant Board inspectors after a July 9, 2018, complaint by a nearby farmer who reported possible dicamba damage to his soybeans.
The two inspectors testified Friday that they tracked the damage to Jason McDonald's field, where they said they saw signs that pigweed had been sprayed recently with dicamba. They said Jason McDonald provided them with the number of his father's license as a certified applicator. Jason McDonald's license had expired in March 2018.
Ballard said Plant Board inspectors never visited or spoke with Jimmy McDonald while investigating the case. Jimmy McDonald also didn't authorize his son to use his applicator's license, Ballard said.
"I think the evidence is just short, guys," Ballard said, adding that he sympathized with the Plant Board for having a difficult job. He said the board has been unjustly criticized at times over the past three years in its dealings with dicamba but said other criticism has been fair. Ballard has filed a lawsuit challenging the composition of the board, which has some members selected by a variety of agriculture interests and others appointed by the governor.
The McDonald case was the second this fall deemed by the Plant Board to be eligible for up to $25,000 in fines for "egregious" violations of pesticide law. In late October, the Plant Board levied $105,000 in fines against a Missouri farmer for illegally spraying dicamba and committing other violations last year on cropland he farms in Arkansas. That farmer didn't appear at that hearing, or send an attorney to represent him.
Jason McDonald didn't appear at Friday's hearing involving his father.
Jimmy McDonald said he's retiring this year after 42 years of farming. Over the past few years, he said, he has been relinquishing some of the 3,000 acres he leases or owns to his son in preparation for retirement. The field at issue, he said, is owned by his son.
He said he didn't know his son's applicator license had expired until the July investigation began. Such a license also is required for the purchase of restricted-use herbicides such as dicamba.
Board members Marty Eaton and Terry Fuller said Jason McDonald's production of his father's pesticide license while being visited by Plant Board inspectors was grounds enough to file the violations against Jimmy McDonald. They cited Plant Board precedent of investigating a license holder, who most times is the farm owner, as opposed to investigating a hired hand possibly acting illegally at the owner's behest.
Eaton and Fuller also noted that Jimmy McDonald owns the spray rig that Jason McDonald used on the field where inspectors believe dicamba was applied.
Nine other board members said the case against Jimmy McDonald was weak, with at least two members saying there's a better case against Jason McDonald.
All Plant Board decisions involving farmers can be appealed to any circuit court in the state.
The board is next scheduled to meet at 9:30 a.m. Wednesday at the Embassy Suites hotel in west Little Rock to consider dicamba regulations for the 2020 crop season.
Business on 12/07/2019