The Arkansas Supreme Court on Thursday ordered the removal of nine members of the state Plant Board, saying they had been illegally appointed to their positions.
The Plant Board, which was created in 1917 to deal with a plant disease that threatened the state's apple industry, has long had a mix of members appointed by the governor and others selected by various agriculture trade groups.
The current composition is seven members appointed by the governor and nine by trade groups whose industries are regulated by the board. Two members represent the University of Arkansas System's Agriculture Division but don't have voting privileges.
The Supreme Court said the state law, Arkansas Code 2-16-206, allowing the trade groups to make such appointments, was unconstitutional.
"In a case where there is an unconstitutional delegation of legislative power to a private entity, there can only be one remedy -- the removal of unconstitutionally appointed board members," the court said. "Accordingly, we reverse and remand with specific instructions for the circuit court to remove the unconstitutionally appointed Board members."
The court's opinions in two related lawsuits -- and its edict for removal of the privately appointed board members -- was handed down just a few hours before lawmakers were set to review the Plant Board's 9-5 vote Monday to relax rules for spraying in-crop dicamba this growing season.
The executive subcommittee of the Arkansas Legislative Council, approved the new rules Thursday afternoon.
The rule takes effect at 12:01 a.m. Saturday, giving farmers through June 30 to use in-crop dicamba formulations across the top of dicamba-tolerant soybeans and cotton. There was a May 25 cutoff in 2019 and 2020 for using a herbicide linked to some 1,600 complaints of damage to nontolerant crops and vegetation.
Some lawmakers Thursday afternoon questioned whether they should put off their approval of the new dicamba rule until they further considered the ramifications of the Supreme Court's ruling.
The Legislative Council's rules subcommittee determined, after a 90-minute hearing, that it couldn't recommend approval or disapproval of the new dicamba rule. The executive subcommittee then met and approved the rule after about 15 minutes of testimony.
The new rule also sets a half-mile buffer for certified organic crops and commercially grown specialty crops, a quarter-mile buffer in all directions for soybeans and cotton varieties not tolerant of dicamba, and a 1-mile buffer for university research stations and crops.
A COMPOSITION CHANGE
The court rulings did not address the legality, or illegality, of any decisions made by the Plant Board.
The ruling also didn't note legislation passed by the General Assembly this spring changing how the trade-group representatives are appointed. Act 361 (formerly House Bill 1210) still allows the private groups to be represented but by having them present at least two nominees to the governor for appointment, subject to Senate confirmation.
Act 361 didn't have an emergency clause, and so it won't take effect until 90 days after the General Assembly formally adjourns. The law also had special language, not to be codified, saying it was the Legislature's intent to allow members now on the board to serve the remainder of their terms.
In a statement Thursday afternoon, Gov. Asa Hutchinson said, "The Supreme Court has spoken very clearly on the appointment power reserved in our constitution to the executive branch of government and the limits on the legislative branch in delegating appointment authority.
"The decision immediately removes the nine challenged appointments by industry groups and will leave the board to function with the remaining nine members until the new law goes into effect, which returns the appointment authority to the Governor. As soon as the law is effective, I will make the new appointments in accordance with the recently passed legislation."
FARMERS, MONSANTO SUE
Thursday's court rulings were issued in lawsuits filed separately by the Monsanto Co., now owned by Bayer, and a group of farmers. Both lawsuits stemmed from discontent with various Plant Board decisions dealing with dicamba in the past couple of years.
The legality of the board's composition -- although debated over the years -- had never been challenged until those lawsuits. The court heard arguments on both cases two weeks ago.
The office of Attorney General Leslie Rutledge defended the Plant Board and argued that its composition was constitutional. Rutledge's office, on Thursday afternoon, said, "The Attorney General's Office awaits further rulings from the Circuit Court consistent with the decision from today's Supreme Court decision."
In the lawsuit filed by farmers, the court sent instructions to Pulaski County Circuit Judge Timothy Fox to begin removal of the nine trade-group appointees.
Fox in March 2018 dismissed the farmers' lawsuit, citing a Supreme Court decision about three months earlier that the sovereign immunity clause in the state's 1874 constitution protects the state from being made a defendant in its own courts. Fox didn't address the legality of the Plant Board's composition.
Pulaski County Circuit Judge Chris Piazza also cited the sovereign immunity ruling in dismissing the Monsanto lawsuit in 2018. The Supreme Court, however, sent the case back to Piazza, who ruled in 2019 that the nine trade-group appointments were illegal. Piazza retired last year.
Supreme Court Justice Karen Baker dissented without comment in both rulings on Thursday, noting only that she had dissented in a handful of other Supreme Court cases it had considered following its initial ruling on sovereign immunity.
"[T]he majority cannot pick and choose when an exception [to the sovereign immunity ruling] or exemption may apply," Baker wrote in 2019, objecting to the Supreme Court reviving Monsanto's lawsuit.
Justice Barbara Webb wrote the majority opinion in the lawsuit (20-CV-164) filed by farmers. Justice Courtney Hudson wrote the majority opinion in the Monsanto case (20-CV-173).
"This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumably disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business," one of the opinions said, quoting from a Supreme Court ruling from years ago.
Terry Fuller, who has been the board's chairman for about a year, said Thursday that he is uncertain of the full ramifications of the court's ruling. "I'm just a farmer, not a lawyer," Fuller, of the Phillips County community of Poplar Grove, said.
Fuller, a cattleman and seed grower and seed dealer, represents the Arkansas Seed Growers Association. If he is removed from the board, Fuller said he'd have no regrets.
"It's an honor to serve the citizens and the state of Arkansas and to stand up for what I thought was right," Fuller, a critic of dicamba's extended use, said. "That's what I plan to keep on doing, whether it's on the Plant Board or wherever life takes me."
Tommy Anderson, owner of Tommy's Flying Service and Plant Board representative of the Arkansas Agriculture Aviation Association, said, "It's something I do as a service to my state. If that's the court's ruling, then we'll have to deal with that. It's been an honor to serve and we'll see what the future brings."
Mark Morgan of Clarksville, owner of Peach Pickin' Paradise and representative of the Arkansas Horticulture Society, said, "I went into this elected by the horticulture society. I've always tried to represent them while always willing to take a phone call from anybody else. If it's unconstitutional, it is what it is, and we have to do what's right."
Other Plant Board members elected by trade groups declined comment until they could read and think about the ruling or couldn't be reached for comment.
Those other trade groups and Plant Board representatives are: Arkansas Seed Dealers Association (Marty Eaton); Arkansas Forestry Association (Scott Milburn); Arkansas Pest Management Association (Mark Hopper); Arkansas Crop Protection Association (Brad Koen); Arkansas Oil Marketers Association (Terry Stephenson); and Arkansas Green Industry (Jason Parks).
The governor's seven appointees are Bruce Alford (forage industry); Kyle Baltz and Matthew Marsh (farmers at large); Reynold Meyer (cattle farmers); Sam Stuckey (cotton farmers); Barry Walls (rice growers); and Darrell Hess (plant food).
The new legislation related to the Plant Board's composition adds a 19th member, to represent soybean farmers and appointed by the governor.