Filing: No risk if six use dicamba

Ban exemptions go to high court

Allowing just six Arkansas farmers to spray dicamba this summer won’t be a threat to the rest of the state, their attorney said Tuesday in a court filing.

Grant Ballard, a Little Rock attorney, said a court decision last month exempting the six farmers from a fast-approaching ban on in-crop use of the herbicide should be allowed to stand.

The state Plant Board’s ban on in-crop use of dicamba starts Monday and extends through Oct. 31.

“Allowing the six … the option to spray dicamba on their row crops does not present a significant or irreparable threat of harm,” Ballard wrote in asking the Arkansas Supreme Court to let stand Pulaski County Circuit Judge Tim Fox’s March 30 ruling.

The state attorney general’s office, which is representing the Plant Board, asked the Supreme Court last week to stay Fox’s order until an appeal is heard.

Ballard noted that the April 16-Oct. 31 ban includes exemptions for weed control on pastureland, home gardens and residential lawns. It’s also the only such ban in more than 30 states where soybeans are grown and dicamba is sprayed, he said.

The exemption for pastures and rangeland, however, says crops susceptible to dicamba must be at least a mile away in all directions.

The six farmers sued the Plant Board last November after unsuccessfully contesting the April 16 cutoff date through a formal process called a petition for rulemaking. As a compromise, the farmers asked for a May 25 cutoff date, along with other restrictions, all rejected by

the Plant Board.

The Arkansas Supreme Court’s ruling in January that the state cannot be made a defendant in its own courts required that he dismiss the farmers’ lawsuit, Fox said last month.

However, he said, such a ruling also deprived the farmers of their rights to due process, specifically the right to appeal the Plant Board’s rejection of their petition. Fox then ruled that the ban was null and void for the six farmers but for no others, because their lawsuit wasn’t a classaction one.

“It is clear [Fox] was correct in finding that due process was not afforded,” Ballard wrote. “Due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. … Due process was blatantly denied and the [dicamba] rule should be voided because of this denial.”

The attorney general’s office has asked the court to stay Fox’s ruling by Monday, when the ban takes effect.

The Plant Board implemented the ban after receiving 997 complaints last summer of dicamba damage to soybeans, fruits and vegetables, and other vegetation susceptible to the herbicide. While some farmers plant dicamba-tolerant varieties of soybeans and cotton, other farmers prefer varieties not genetically engineered to be resistant to the herbicide.

Monsanto, which produced new formulations of dicamba for its dicamba-tolerant crops, also sued the Plant Board over the ban. Its lawsuit also was rejected, in February, because of the Supreme Court’s ruling on the sovereign-immunity doctrine in the state’s 1874 constitution.