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Arkansas Supreme Court: Must reassess part of lawsuit by dicamba-maker

by Stephen Steed | June 7, 2019 at 4:30 a.m.

A lawsuit by Monsanto against the state's restrictions on the use of dicamba raised valid points and should be reconsidered, the Arkansas Supreme Court said Thursday.

The court, in a 6-1 ruling, said the state Plant Board "must address the merits of Monsanto's claims" that the board violated state law and had other legal conflicts in 2016 and 2017 in deciding how to limit farmers' use of dicamba herbicides manufactured or marketed by Monsanto and other companies.

In 2016, faced with some three dozen complaints that dicamba had moved off target and damaged crops not tolerant of the herbicide, the Plant Board voted to not allow Monsanto's dicamba, called XtendiMax, into Arkansas for the 2017 crop season.

The board at the time cited an unwritten requirement of at least two years' worth of study by weed scientists with the University of Arkansas Agriculture Division before such herbicides and other products can be registered in the state. (Monsanto, now owned by Bayer, had allowed the UA scientists, and university scientists in other states, to study the new dicamba for its effectiveness against weeds but not for any tendency for off-target movement, whether through physical drift or vaporization hours or days after being applied.)

Monsanto, in its October 2017 lawsuit, said such a rule, especially an unwritten one, violated federal law on interstate commerce and had been applied inconsistently by the board.

Monsanto also said the composition of the Plant Board -- with a mix of appointees named by the governor and others selected by agriculture trade groups -- was unconstitutional. A 1917 state law that created the board also established how the panel is filled.

The Supreme Court didn't address the merits of those issues on Thursday but said they "still reflect a ripe and justiciable case or controversy." The court instead sent the case back to Pulaski County Circuit Judge Chris Piazza, who dismissed Monsanto's lawsuit in March 2018. Piazza cited a state Supreme Court ruling two months earlier that, under the doctrine of sovereign immunity in the state's 1874 constitution, the state cannot be made a defendant in its own courts.

In that case, Board of Trustees of the University of Arkansas vs. Matthew Andrews, the court overturned more than 20 years of precedent that had allowed the Legislature to draft exemptions to sovereign immunity, such as for cases involving whistleblowing and wage disputes. The Andrews case involved a wage dispute that should have been filed with the state Claims Commission, not as a civil action against the state, the court said.

Piazza said that ruling restricted citizens' attempts to have government wrongdoing addressed in courts and limited what he and other circuit judges could do when presented with such cases. Piazza also said in his ruling that Plant Board records from meetings and public hearings indicated that its members did extensive work in setting restrictions, which later were approved by the governor and lawmakers on certain committees.

Monsanto appealed, saying its lawsuit was about misconduct by the board, not an effort to win money. Illegal acts by a state entity are an exception to the court's findings on sovereign immunity, Scott Trotter, a Little Rock attorney representing Monsanto in its lawsuit, wrote.

Trotter's arguments were correct and consistent with the court's initial ruling on sovereign immunity and in similar cases since, Justice Josephine "Jo" Hart wrote for the majority in Thursday's ruling. Special Justice Karen McKinney, who replaced Justice Courtney Hudson Goodson on the case, joined Hart's opinion. Goodson had recused.

Justice Karen Baker dissented, as she has on a handful of other cases related to the court's sovereign-immunity ruling. Until that case is overturned, "the majority cannot pick and choose when an exception or exemption may apply," Baker wrote.

There was no immediate comment from Monsanto.

Attorney General Leslie Rutledge, whose office represented the Plant Board, "is reviewing the opinion and is confident in our position on the remaining claims in circuit court." The office contended that the board had acted legally.

Also in Thursday's ruling, the Supreme Court said Monsanto's fight against specific Plant Board restrictions on in-crop use of dicamba in 2017 was moot because new regulations are in place. The court also dismissed, for the same reason, challenges by two groups of Arkansas farmers to the Plant Board restrictions of 2018. A third challenge by Arkansas farmers was dismissed two weeks ago.

The new restrictions, which haven't been challenged in court, included a cutoff date of May 25 this year on spraying any formulation of dicamba across the top of soybeans and cotton tolerant of the herbicide.

The court said Thursday that it wouldn't give any advisory review of the 2019 regulations but added, "it is fair to say the new rule appears to reflect an effort at a more 'tailored' system that would allow the interested parties to do more of what they want, more safely, during specific pre-designated periods of time."

Critics say the 2019 restrictions do nothing to protect susceptible crops.

Complaints of dicamba damage to crops and vegetation not tolerant of the herbicide grew from about three dozen in 2016 to about 1,000 in 2017. About 200 were filed last year, when farmers had an April 15 cutoff on spraying dicamba.

As pigweed and other weeds grew resistant to glyphosate, commonly known as Monsanto's Roundup, the company developed dicamba-tolerant soybeans and cotton seed. Monsanto released the new seeds -- cotton in 2015, soybeans in 2016 -- before winning approval from the federal Environmental Protection Agency for its new dicamba herbicide.

The EPA decided last fall to allow the use of dicamba formulations by Bayer and other companies through at least the 2020 growing season.

A Section on 06/07/2019

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