The state Plant Board is seeking $592,000 from 18 farmers to settle claims that they violated the state's 2018 and 2019 seasonal bans on spraying dicamba, a herbicide linked to nearly 1,500 complaints of damage to crops and other vegetation the past four years.
The largest single proposed settlement is for $175,000; the others range from $15,000 to $50,000, according to 19 dicamba-related case files obtained by the Democrat-Gazette from the state Department of Agriculture under the Freedom of Information Act.
The $175,000 settlement offer was sent to Russell Thomason of Osceola, for seven counts of allegedly spraying dicamba after last year's May 26 ban took effect and seven counts of failing to keep or provide records of spraying, as required by state and federal law.
Each of the 14 counts is considered an egregious violation under a relatively new state law, punishable by fines of up to $25,000, for a possible total of $350,000 if the case isn't settled.
This year's ban on in-crop use of dicamba begins Tuesday and runs through Oct. 31, a factor in a rush of proposed settlement offers sent out since the Plant Board voted March 10 to expedite investigations.
Most of the offers have been sent out every Friday for the past three weeks and will continue as staff works through a still-undetermined number of backlogged cases.
Beyond releasing the cases, the agriculture department couldn't comment, a spokeswoman said.
Two farmers who were among a group of six who sued the board in November 2017 for its dicamba restrictions also received settlement offers for alleged violations in 2019.
Perry Galloway of Gregory, in Woodruff County, received a $25,000 settlement offer for allegedly spraying during last year's ban and not keeping spray records.
Michael McCarty of Osceola was sent a settlement offer of $37,500, on allegations of three egregious violations: spraying dicamba during last year's ban, lacking a private applicator's license, and failing to keep records.
While a part of the lawsuit filed by the six farmers was struck down in Pulaski County Circuit Court, another part is pending before the Arkansas Supreme Court.
Thomason, who received the $175,000 settlement offer, will challenge the findings, Grant Ballard, a Little Rock attorney for Thomason, said in an April 30 email to the board. Ballard, who also was the attorney in the six farmers' lawsuit, asked for an informal hearing with Plant Board staff to reconsider Thomason's case.
Ballard last week declined comment on Thomason's case and on any settlement offers he may be handling on behalf of other farmers.
Of the 19 case files involving the 18 farmers (one farmer has two case files), seven investigations were prompted by complaints filed by other farmers, and 12 were opened by Plant Board inspectors during "routine monitoring" of fields in their districts.
The other farmers who received settlement offers for dicamba-related cases between the board's March 10 vote and May 15 are:
Justin Blackburn of Paragould ($25,000); William M. Butler of Osceola ($15,000); Brandon Cain of Des Arc ($25,000); Weston Cissell of Joiner ($25,000); Neil Culp of Marvell ($27,000); James Drace of Tyronza ($25,000); David Freppon of Bald Knob ($25,000); Keith Earl Mooney of Marion ($37,500); Harvey Roach of Lepanto ($12,500); Gavin Richard Sullivan of Burdette ($25,000); Thomas Turner Jr. of Marvell ($12,500); Danny Voyles of Wynne ($12,500); John Wallace Jr. of Crawfordsville ($25,000); Godfrey White Jr. of Osceola ($12,500); and Barry Winford of Dyess ($50,000).
The settlement offers generally are for about half of the maximum fines allowed under the board's penalty matrix. Agreeing to the settlement isn't an admission of wrongdoing, according to the paperwork sent to the farmers, who have 30 days from the date of receiving the offers to respond.
COMPLAINTS SURGE
Dicamba was used for decades around the farm and home but rarely in fields after crops emerged because few crops were tolerant of the herbicide. Its use on fields was primarily during burndown, when fields were being prepared in late winter or early spring prior to planting.
As pigweed, marestail and other weeds developed resistance to glyphosate -- commonly known as Roundup -- and other herbicides, Monsanto began genetically modifying cotton and soybeans to be tolerant of dicamba. It also began developing a new dicamba formulation designed to be less prone to off-target movement than older formulations.
Now owned by Bayer, Monsanto released the new dicamba-tolerant crops before the federal Environmental Protection Agency approved Monsanto's new dicamba, in late 2016.
"[B]y not having a dicamba labeled for use [with the new seeds], we are most likely headed for a train wreck," Tom Barber, a weed scientist for the University of Arkansas Division of Agriculture, wrote on his blog on Feb. 3, 2016, before that year's planting season. "This is disturbing because never in the past has other herbicide-tolerant technology been released without the herbicide being labeled for use in the crop."
Regulators in Arkansas and other states soon saw surges in complaints of dicamba damage, mostly in soybean varieties not tolerant of dicamba but also in fruit orchards, vegetable farms and ornamental shrubs and trees.
The Arkansas board received 15 dicamba complaints between 2000 and 2014. It received 15 complaints in 2015 when Monsanto released dicamba-tolerant cotton, and 31 in 2016 when the company released dicamba-tolerant soybeans.
In 2017, the Plant Board received 1,014 complaints, as dicamba-tolerant acreage and use of the herbicide increased. It received 200 complaints in 2018 and 209 in 2019.
UA FIELDS HIT AGAIN
The case against Thomason began May 30, 2019, with a complaint of possible dicamba damage on University of Arkansas research fields in Keiser, in Mississippi County. The station's fields also were hit by dicamba in 2017 and 2018, according to complaints in those years.
The Plant Board inspector assigned to the case saw evidence of dicamba symptomology in the UA soybeans and began looking for evidence of dicamba use on fields within a mile of the research station. (State law sets a 1-mile buffer between university and government research stations and legal, pre-cutoff dicamba applications.)
The inspector said in the case file that on June 12 he found pigweed with dicamba symptomology on seven fields farmed by Thomason within a mile of the UA fields and collected about a dozen weed samples for testing.
According to the case file, spray records kept by Thomason and obtained by the inspector showed legal applications of non-dicamba herbicides on the seven fields. "However, symptomology and lab results of samples taken from Mr. Thomason's soybean fields are consistent with a dicamba product being applied," inspector Shawn Johnson wrote.
Johnson also looked at other farmers' fields inside the mile buffer, found no evidence of dicamba applications there, and inspected the spray records of those farmers, according to the case file.
Of the state's 555-page case file, about 200 pages include a laboratory's dicamba-positive results on the pigweed samples collected from Thomason's fields, photographs of the UA research plots and of Thomason's fields, Global Positioning System coordinates for the fields, and spray records of the other farmers. Copies of the labels, or instructions, for the various herbicides noted in the report make up the rest of the case file.
When Ballard, the Little Rock attorney for Thomason, told the Plant Board on April 30 he will challenge the staff's "incorrect" findings, he also wrote in the email "there are other potential sources for drift."
The Plant Board staff, however, didn't accuse Thomason of causing drift, which, in certain circumstances, can be considered an egregious violation. The staff had noted that its inspector couldn't determine the source of the damage to the UA fields.
Instead, the board alleges that Thomason sprayed dicamba on the seven fields during the May 26-Oct. 31 ban in 2019 and didn't keep or provide those records.
The Plant Board has dealt with only two cases of egregious violations since the General Assembly first approved higher fines for dicamba misuse in 2017 and then, in 2019, broadened the violations that could bring the $25,000 maximum fines.
The previous maximum fine for dicamba violations was $1,000.
The board in October fined a Missouri farmer a total of $105,000 for 11 dicamba violations in 2018 on land he farms in Arkansas. Four of the counts brought fines of $25,000 each. The farmer, Jeff S. Todd of Clarkton, Mo., never responded to the Plant Board's correspondence and didn't attend the hearing. Todd has since filed an appeal in Pulaski County Circuit Court.
In the second case, the board cleared an Arkansas farmer of all counts after his attorney showed that it was the farmer's son who had applied dicamba on his own farm, independently of his father. Ballard also handled that case.
BOARD EXPEDITES PROBES
Selected staff and supervisors of the agriculture department's various divisions have long been able to make settlement offers but only within the mid-range of a particular division's penalty matrix.
With its staff uncertain for months whether they could offer settlements in egregious-eligible cases, the Plant Board vote on March 10 clarified that staff can send those offers directly to farmers without first going through the board's pesticide committee.
Several board members said at that meeting, and in previous ones, that they needed to clear the backlog of cases and wanted to alert farmers that the board was serious about this year's cutoff.
A farmer's acceptance of the settlement offer still must go to the pesticide committee and full board for approval or rejection. A farmer who rejects the offer can ask for an informal hearing before Plant Board staff or a formal hearing before the 18-member Plant Board.
"I'm very happy with what staff has been able to get out," Terry Fuller, the board's chairman, said last week. "They've worked hard, in a tough situation because of the coronavirus, to get these letters out."
Fuller said the settlement offers are part of the Plant Board's long-running effort to deal with the dicamba fallout, including the work in 2017 of a task force appointed by Gov. Asa Hutchinson. The task force, for instance, recommended stiffer fines for dicamba misuse that won the support of Arkansas lawmakers and Hutchinson, Fuller said.
Hutchinson also authorized the board last year to hire a collection agency to go after fines levied by the board but not paid by farmers.
Fines go to scholarship funds of the board and the UA extension service.
SundayMonday Business on 05/24/2020