Arkansas farmer summoned by judge over email

Disdain expressed for dicamba order

Soybeans in a Mississippi County field show signs of herbicide damage in this photo taken in June 2018.
Soybeans in a Mississippi County field show signs of herbicide damage in this photo taken in June 2018.

A circuit judge in Little Rock on Thursday ordered a Mississippi County farmer to appear in court next week and explain why he shouldn't be held in contempt.

In a widely distributed email on Tuesday, Tom Burnham, 56, of the Yarbro community had expressed his opposition to -- and an apparent plan to ignore -- Pulaski County Circuit Judge Morgan "Chip" Welch's temporary restraining order against the expanded use of dicamba.

Welch first issued the order on May 21, putting on hold the state Plant Board's June 30 cutoff on farmers' use of in-crop dicamba, a herbicide. That meant the Plant Board's May 25 cutoff for the 2020 crop season was back in effect. Welch extended the restraining order on Monday through at least June 10 pending a hearing on a lawsuit challenging the Plant Board's new rule.

"I have not applied any dicamba after May 24, so I am not in violation of the court's order, but I did voice my displeasure," Burnham said in a telephone interview Thursday afternoon. "I apologize that the Pulaski County court was offended. I run my mouth a lot and got myself into this, but that's no problem. I'm a big boy."

Burnham said he'll hire a lawyer for his appearance before Welch at 11 a.m. Thursday.

When Welch issued, then extended, the temporary restraining order against the June 30 cutoff, he instructed the Plant Board to put out word to farmers and others of his decision.

As part of complying with Welch's instructions, the state Department of Agriculture, the board's umbrella agency, sent out a statement to 193 email addresses of people who'd contributed to a 30-day public-comment period that was part of the board's process of considering the new rule.

Burnham was on that list, and he fired off a response to the department: "I have no [sic] NFTG as to what a Pulaski County Judge's ruling means. As far as I am concerned the recent State Supreme Court ruling essentially invalidated any rules that have been made on dicamba by the ASPB [Plant Board]. I am going to follow FIFRA and the federal label."

The Supreme Court reference was to a ruling May 6 that nine members of the Plant Board are serving illegally because, as the General Assembly has allowed for 104 years, they had been appointed to the board by private trade groups. The court said lawmakers could not legally delegate their appointment powers to private entities. The court didn't strike down, or question, the legality of Plant Board decisions made prior to the ruling.

FIFRA is an acronym for the Federal Insecticide, Fungicide, and Rodenticide Act. This year, the federal Environmental Protection Agency allows in-crop dicamba's use through June 30 on soybeans and July 30 for cotton -- dates that please pro-dicamba farmers.

"Plaintiffs believe that 'NFTG' is an abbreviation of the phrase 'No F--- to Give,"' attorney Richard Mays wrote in a court filing asking Welch to consider calling Burnham into court. Mays filed the lawsuit against the Plant Board that led to Welch's temporary restraining order.

The Agriculture Department's email blast showed the email addresses of the 193 recipients, including that of Mays. Burnham said he intentionally included the 193 email addresses in his response, hitting "reply to all," because the Agriculture Department was "dumb enough" to allow all the email addresses to be available.

The email was among three exhibits in the "show cause" motion Mays filed Wednesday asking Welch to summon Burnham to Little Rock.

The other exhibits were posts on Burnham's Twitter account, including an off-color tweet that mentioned Welch and used the full phrase for the NFTG acronym. The other tweet stated, "It's a good day to spray dicamba."

Burnham said he wasn't serious about that one either.

Mays wrote that both tweets "indicate in no uncertain language that he has no respect" for Welch's temporary restraining order and "does not intend to comply with it." Other farmers, Mays wrote, want to keep spraying dicamba and "are observing to determine whether Mr. Burnham will be allowed to disregard" Welch's order.

Other social media posts by Burnham, at least for now, are not part of the court record.

"I admit, I said some pretty mean things," Burnham said. "But I want to make it clear that I have not violated the order. I don't intend to violate the order."

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