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story.lead_photo.caption In this file photo participants look over proposed rules for the use of the herbicide dicamba at a meeting of the state Plant Board at the Embassy Suites Hotel in west Little Rock. ( Democrat-Gazette file photo / John Sykes Jr.)

The state Plant Board voted 13-0 Monday, after less than 30 minutes of discussion, to appeal a circuit court ruling that part of its composition is illegal.

Pulaski County Circuit Judge Chris Piazza on Dec. 19 ruled that the 1917 state law establishing the board was unconstitutional, in part, by allowing private interests to select a representative to the board.

Piazza's decision arose from a lawsuit filed in 2017 by Monsanto, the seed-and-chemical giant now owned by Bayer.

Monsanto representatives, in court documents and public meetings, have criticized the Plant Board for actions that have restricted, or prohibited, the use of the company's new formulation of dicamba, a herbicide.

Monsanto has argued that the General Assembly illegally gave regulatory powers to private citizens not accountable to the public.

The Plant Board has restricted the use of Monsanto's dicamba -- and those of other chemical companies -- the last three crop seasons after a deluge of complaints that dicamba has damaged other crops not tolerant of the herbicide, vegetation crucial for pollination, vegetable gardens, and ornamental shrubs and trees well away from farmland.

For 102 years, the board has been made up of some members appointed by the governor and others named by agricultural groups. It was formed at the time to deal with a plant disease that threatened the state's then-vibrant apple industry.

Today's board has seven members appointed by the governor and nine selected by groups, such as those representing aerial applicators, seed dealers, seed growers, horticulture, pest management, forestry and pesticide manufacturers. Two others represent the University of Arkansas System's Agriculture Division but don't have voting privileges.

Russell Bragg of Fort Smith, a board member selected by the Arkansas Feed Manufacturers Association, said the board "has effectively managed" Arkansas agriculture issues for more than 100 years.

Bragg said its composition is being challenged now only because Monsanto "put out a chemical that won't stay put" and "wanton disregard" for Plant Board restrictions against dicamba's use. The board has set a May 25 cutoff date for dicamba's in-crop use next year.

That's the same cutoff for 2019 spraying, yet the board received some 200 complaints of damage, leading some to believe the ban had been violated.

"This is a product that probably came out on the market before it was ready," Bragg said.

Weed scientists in Arkansas and other states say that even the new formulations of dicamba have a tendency to move off target, whether through physical drift as it's being applied or through atmospheric changes, especially in times of high temperatures and high humidity, hours or days after application.

Monsanto and other manufacturers contend that many problems were caused by human error and that the number of complaints in Arkansas and other states has dropped because of more and better training.

Some 50 farmers and others filled the panel's boardroom for the meeting Monday.

Monsanto developed the dual system -- a new dicamba formulation and dicamba-tolerant seed -- as weeds grew resistant to other herbicides. Bayer's $66 billion purchase of Monsanto closed in June 2018.

The 13-0 vote to appeal Piazza's ruling included those of five Plant Board members appointed by Gov. Asa Hutchinson: Bruce Alford of Lewisville, John Fricke of Pine Bluff, Matthew Marsh of England, Sam Stuckey of Clarkedale and Barry Walls of Harrisburg.

Two other Hutchinson appointees -- Kyle Baltz of Pocahontas and Robert Campbell of Witts Springs -- didn't attend the meeting or participate by telephone. The eight other votes came from industry appointees. The board's chairman didn't vote, as is customary.

The Monsanto lawsuit would be the second case on the same issue appealed to the Arkansas Supreme Court.

On Dec. 2, Pulaski County Circuit Judge Tim Fox ruled that the composition of the board was legal. That lawsuit was filed by six Arkansas farmers, whose attorney on Dec. 18 filed a notice of appeal with the Arkansas high court.

The attorney general's office is representing the Plant Board in both cases.

Assistant Attorney General Jennifer Merritt advised the Plant Board to appeal Piazza's ruling. She also recommended that the board ask that Piazza's ruling be stayed, pending appeal to the Supreme Court.

Piazza indicated in his Dec. 19 ruling that he would do so.

Piazza's ruling hasn't been filed formally, but Merritt said that likely would happen this week.

Merritt also noted that neither plaintiff -- Monsanto nor the six farmers -- has asked that Plant Board decisions, including those affecting other industries regulated by the board, be invalidated.

The attorney general's office has argued that the board, even with some appointees made by special-interest groups, is accountable to the public because its rules and regulations are subject to review by lawmakers and the governor.

The Arkansas Supreme Court isn't obligated to hear either case, and any decision could hinge on how a majority within the court continues to grapple with its early 2018 ruling that the state cannot be made a defendant in its own courts. The court at the time cited a clause of "sovereign immunity" in the state's 1874 constitution.

Business on 12/31/2019

Print Headline: State Plant Board votes to appeal ruling

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