Six farmers in state get judge’s OK on dicamba

Six Arkansas farmers — and no others — will be allowed to spray dicamba on their crops this summer while their colleagues remain under a statewide ban on the herbicide, according to a judge’s ruling Friday.

The six farmers had sued the state Plant Board in November for actions it took in ultimately banning in-crop use of dicamba from April 16 through Oct. 31.

“The ban is null and void only for those six farmers,” said Grant Ballard, a Little Rock attorney for the farmers.

Pulaski County Circuit Judge Tim Fox dismissed the lawsuit itself, citing the Arkansas Supreme Court’s ruling in January that the state, under the sovereign immunity clause in its 1874 constitution, cannot be made a defendant in its own courts.

However, Fox said that ruling also effectively curtailed the farmers’ rights to due process and their right to appeal the Plant Board’s ban.

The state “has the absolute right” to claim sovereign immunity but doing so gave the farmers “no opportunity” to seek relief from the Plant Board’s decision, Fox said.

“The constitution requires some sort of remedy for damage,” Ballard said. “That’s a fundamental part of due process. Long story short, the judge said there was no remedy for us, that our clients’ due process rights were violated and, as a consequence, the ban was void ab initio [from the beginning], like it never occurred.”

Because the farmers’ lawsuit wasn’t a class-action filing, Fox’s ruling affects only those six farmers and allows them to spray dicamba if they want, Ballard said.

“The complaint was dismissed but, at the same time, we received some significant relief,” Ballard said. “I wish there’d be relief for all farmers who would use this [dicamba] technology responsibly.”

Attorney General Leslie Rutledge, whose office represented the Plant Board, said in a statement, “I am pleased that Judge Fox dismissed the plaintiffs’ claims but disappointed in his decision to except the plaintiffs from the Plant Board’s rule.” Rutledge said she will consider the office’s next steps after Fox issues his written order.

Fox called the case one of “literally a plethora of cases that involve the evolving sovereign immunity doctrine.”

“And so, what we’re going to have is … lots of decisions by lots of trial judges that may or not may not be in disagreement in probably every one of the 75 counties” in Arkansas, Fox said.

“I am happy that I and the others now have the option — and I stress ‘option’ — that at least we can use dicamba if need be,” said Perry Galloway, a Woodruff County farmer and one of the six who sued the Plant Board.

He said he didn’t know yet whether he would use the herbicide. Within hours of Fox’s ruling, he said, he called weed scientists and other experts and asked them “to come to my farm if we make an application and help us monitor everything we do and make sure we do everything right.”

Galloway said he wasn’t certain how other farmers — many of whom lobbied hard for the dicamba ban after sustaining injury to their crops last year — will react to Fox’s ruling allowing just the six to spray the herbicide. “I would think the Plant Board’s telephones are ringing a lot today and certainly will on Monday because, as the judge said, this isn’t a class-action suit and it’s not a class-action remedy,” Galloway said.

The five other plaintiffs — Michael McCarty, Matt Smith, Greg Hart, Ross Bell and Becton Bell — farm primarily in Mississippi and Crittenden counties.