State seeks dicamba-exemption halt

A Pulaski County judge overstepped his authority in exempting six farmers from the state’s ban on dicamba use, attorneys for the state said Thursday.

The attorney general’s office asked the Arkansas Supreme Court to halt Circuit Judge Tim Fox’s March 30 decision and to expedite further filings in the case.

The state’s ban on in-crop use of the herbicide takes effect April 16 and runs through Oct. 31.

Six farmers sued the state Plant Board, which implemented the ban, after the board had denied the farmers’ formal request to set a May 25 cutoff date as a compromise and to put other restrictions on an herbicide linked to damage to soybeans and other vegetation last year.

Fox dismissed the farmers’ lawsuit based on the Supreme Court’s 5-2 ruling in January that the state cannot be made a defendant in its own courts.

However, Fox said, such a ruling deprived the farmers of their state and federal constitutional rights to due process, specifically their right to appeal the Plant Board’s decision. Fox declared the cutoff date null and void for only those six farmers because their lawsuit wasn’t a classaction filing.

Halting Fox’s order “will protect the status quo for Arkansas farmers who do not wish to use or be exposed to dicamba, beekeepers who would suffer a substantial yield-loss of their honey crops [and] farmers who wish to use dicamba but are not one of the six” who sued, Assistant Attorney General Gary Sullivan wrote Thursday.

Grant Ballard, a Little Rock attorney for the six

farmers, said he believed Fox was correct in his order and within his authority.

“I think it’s really troublesome that the attorney general of Arkansas would take the position that the state can do whatever it wanted without regard for the consequences facing Arkansas citizens,” Ballard said. “To say we don’t have the right to appeal is the

most troubling thing I’ve ever heard of.”

If the state is immune from lawsuits, “the circuit court has no authority to order substantive relief or make substantive declarations,” Sullivan wrote.

Letting Fox’s ruling stand “would allow circuit courts to completely thwart” the concept of sovereign immunity and “would create a Macktruck-sized loophole,” Sullivan wrote.

The Supreme Court said in January that lawmakers

over the past 20 years have illegally waived sovereign immunity in certain cases. “The General Assembly does not have the power to override a constitutional provision,” the majority wrote.

That ruling led to Pulaski County Circuit Judge Chris Piazza’s decision in February to dismiss a lawsuit filed against the Plant Board by Monsanto, which had developed new formulations of dicamba to go along with its dicamba-tolerant soybeans

and cotton.

Monsanto and other manufacturers of dicamba have been sued by farmers in federal courts in Arkansas and other states, with several of those lawsuits now centralized in federal court in St. Louis for pretrial motions and hearings.

The attorney general’s office asked the court to set Tuesday as the deadline for other pleadings in Fox’s ruling and to stay Fox’s order by April 15 while the case is being appealed.