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Files show settlement offers over dicamba

by Stephen Steed | August 30, 2020 at 2:05 a.m.

Settlement offers for farmers who may have violated the state's ban on spraying dicamba have reached nearly $1.5 million at the same time three farmers have seen proposed cuts of as much as 94% in the offers they received weeks ago.

Nine more farmers have received settlement offers totaling $316,500 in the past several weeks, according to records from the state Department of Agriculture. The offers range from $16,500 to $50,000. The Arkansas Democrat-Gazette requested the records under the state's Freedom of Information Act.

Forty-eight settlement offers, totaling $1,476,500, have now gone out this spring and summer as the staff of the Plant Board, a part of the Agriculture Department, continues to clear case files from 2018 and 2019.

The newspaper's accounting is only of cases that involve at least one reported "egregious" violation of Arkansas pesticide law regarding use of dicamba and auxin herbicides. Such a violation is punishable by a fine of up to $25,000, though settlement offers are for half that amount and half of lesser fines under the board's penalty matrix.

Some farmers upset with the Plant Board -- especially those facing several violations -- have taken their grievances to lawmakers.

"I understand the purpose -- to spank somebody a little bit to get them to follow the rules -- but of things I've heard, it's more like shooting somebody," Rep. Dan Douglas, R-Bentonville, said at a recent joint meeting of the House and Senate committees on agriculture, forestry and economic development.

A late addition to the agenda, labeled "dicamba concerns," attracted three agriculture officials to the meetings: Secretary of Agriculture Wes Ward; Scott Bray, director of the department's plant industries division; and Terry Fuller, chairman of the Plant Board.

Lawmakers didn't address a second part of the agenda item: the Plant Board's composition, a mix of appointees by the governor and members selected by various agriculture private interests, now before the Arkansas Supreme Court.

Douglas, who is chairman of the House panel, and other lawmakers asked if violations were being "stacked" unfairly against farmers. They were told that several violations -- some egregious, some not -- can arise from the same incident.

Lawmakers in 2017 increased the maximum fines from $1,000 to $25,000 because the $1,000 fines weren't seen as a deterrent to the illegal spraying of a herbicide linked to a crush of complaints about damage to other crops and vegetation not tolerant of the herbicide.

Arkansas regulators have received more than 1,600 complaints since 2016; other soybean- and cotton-producing states have reported similar numbers.

The egregious violation most often cited in settlement offers this year is for spraying dicamba after the state's cutoff dates in 2018 and 2019.

Other violations eligible for the maximum $25,000 fines are spraying dicamba that results in drift onto another's property or crops; failure to keep spray records; failure to provide records upon request by an investigator; and lacking an applicator's license.

Fuller, a Plant Board member for seven years, told lawmakers that federal law also requires farmers to maintain spray records and to make those records available upon request to regulators. Fuller said he doubted that he could get away with not turning over his business' tax records, if audited by the state, or for refusing to turn over his driver's license and proof of insurance during a traffic stop.

"There are a lot of people who are illegally using the product; it's not unusual," Sen. Ron Caldwell, R-Wynne, said at the Aug. 17 meeting, adding that he visited a farm that had dicamba damage last year.

FARMERS UPSET

As settlement offers have been sent out this spring and summer, the Democrat-Gazette in two earlier articles published the names of farmers who received such offers on suspected egregious violations.

That has upset some farmers, said Rep. Joe Jett, R-Success, in Clay County.

"I think we've about beat this dicamba issue nine ways to Sunday ... but when names of the farmers came out in the newspaper several months ago, you guys didn't do yourselves any favors," Jett told Ward, Bray and Fuller.

Ward and Bray responded that Arkansas law required the agency to comply with the newspaper's Freedom of Information Act request.

"I do also want to echo the point about FOIA, the Freedom of Information Act requirements," Ward said. "I agree that puts everybody -- puts us, puts the farmer, puts the producer, puts a lot of people -- in a very tough spot when some items get released before the names associated to those things ... [are] ready to go out.

"Unfortunately that was just a product of the Freedom of Information Act request process. So that may be an item -- I make a recommendation that may be an item worth consideration during the next legislative session."

A spokeswoman for the Agriculture Department said last week that Ward said,"'I'm not making a recommendation,"' in response to Jett's concerns about the Freedom of Information law.

OFFERS REVISED

Other lawmakers wanted a clarification of the difference between settlement offers and fines, and asked whether offers on certain violations were being applied consistently.

Settlement offers are not fines and are generally for about half of the possible maximum, Bray told lawmakers. Warning letters also can be issued, and the maximum fine for many other violations is $1,000.

Fuller said the 2017 law establishing the $25,000 fines also limited those fines to violations that result in "significant off-target damage." Legislation in 2019 expanded the list of possible egregious violations.

Some violations in 2018 punishable by $1,000 maximum fines are now eligible for $25,000 fines, he said.

Settlement offers are made by the Plant Board staff after field inspectors close their investigations. Most investigations are opened because of complaints filed by farmers and others, although some are initiated by inspectors on "routine monitoring" of their assigned areas.

Case files are composed of photographs of fields and of dead or dying pigweed, GPS coordinates, results of laboratory tests on plants and weeds collected from fields, and state and federal regulations on dicamba's use.

A farmer who receives a settlement offer can ask for an informal hearing with the Plant Board staff to discuss the findings. "We're always open to the settlement process," Bray told lawmakers.

Offers accepted by farmers still must be approved by the Plant Board's pesticide committee and the board. The board also can impose fines when settlement offers are refused or ignored. Stiffer fines can be levied against farmers who have previous violations.

Bray said few farmers, so far, have asked for informal hearings. "Most are [turning] to lawyers" Bray said.

Farmers with settlement offers also can ask for formal hearings before the Plant Board. At those, a farmer can have a lawyer present and the state attorney general's office provides a hearing officer.

Bray told lawmakers that the staff would rescind or correct any offers or proposed fines that were based on errors by inspectors or other misunderstandings.

An example of that, from a recent informal hearing, is a farmer who was accused of failing to provide records, when the inspector never asked to see them in the first place. The egregious violation of failing to provide records was dismissed.

Two other farmers who had informal hearings this summer also have seen their settlement offers reduced. The Plant Board staff cited the farmers' cooperation and a reconsideration of facts in the cases as reasons for the reductions.

One offer went from $25,000 to $1,562, a 94% reduction, because the farmer used a backpack sprayer to spot-douse pigweed rather than a spray rig across an entire field. That element of the case was known when the $25,000 offer was made in May.

The pesticide committee on Aug. 21 accepted the three revised offers, all of which were changed before the legislative meeting. The board will consider them Tuesday.

The farmers most recently sent settlement offers are: William Bernard of Hughes ($37,500); Kevin Crosskno of Blytheville ($37,500); Lonnie Gibson Jr. of Arbyrd, Mo. ($50,000); Adam K. Hennard of Wilson ($37,500); Matt Inman of Wabash ($25,000); Thomas J. Munn of Wynne ($16,500); David Oprey of Turrell ($37,500); Claud Rains of Turrell ($37,500); and David Wallace of Harrisburg ($37,500).

The Plant Board has had only one case in which it levied a $25,000 fine. The board last fall fined a Missouri man $105,000 for four incidents of spraying dicamba after the 2018 cutoff date on land he farms in northeast Arkansas.

Jeffery S. Todd of Clarkton, Mo., never responded to officials in the case compiled against him, according to the Plant Board, and didn't attend the hearing against him. Todd has appealed the fines to Pulaski County Circuit Court, where court records indicate little activity in the case.

In the only other formal hearing involving at least one egregious violation, the Plant Board last fall dismissed that case, from 2018, after the farmer and his attorney showed errors by Plant Board inspectors.

All other cases involving egregious violations are pending.

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