Justices halt dicamba exception

The Arkansas Supreme Court on Friday put a temporary halt to a judge’s decision to exempt just six farmers from the state’s approaching ban of a herbicide.

Without comment, the court stayed Pulaski County Circuit Judge Tim Fox’s March 30 ruling.

“We’re disappointed, no doubt about that,” said Grant Ballard, a Little Rock lawyer for six farmers who, since last summer, have been contesting the state Plant Board’s restrictions on a herbicide linked to crop damage across the state.

A ban on the in-crop use of dicamba begins Monday and runs through Oct. 31, but it has been mired in courts.

A couple of hours before the Supreme Court’s action, a circuit judge in Phillips County issued a temporary, and limited, stop to the ban.

Circuit Judge Christopher Morledge, in the state’s 1st Judicial Circuit, granted about 70 farmers a temporary restraining order against the dicamba ban. “They’re happy,” Kyle Stoner, the attorney for those farmers, said. “We would hope it [lifting the ban] goes across the whole judicial district, but it more than likely applies just to our plaintiffs.”

Morledge’s order mirrors a similar decision Thursday in Mississippi County, where Circuit Judge Tonya Alexander granted a restraining order in favor of about 85 farmers and farming entities in Mississippi, Crittenden, Poinsett and Craighead counties.

The six farmers in Ballard’s case sued the Plant Board in November after unsuccessfully seeking a compromise cutoff date through a legal process called a petition for rule-making.

Citing a Supreme Court ruling in January that the state cannot be made a defendant in its own courts, Fox dismissed the lawsuit during a hearing March 30.

However, he also said the sovereign-immunity ruling curtailed the farmers’ rights to appeal the Plant Board’s decision. He then declared the April 16-Oct. 31 ban on dicamba use “null and void” only for the six farmers.

The state attorney general’s office asked the Supreme Court to stay that part of Fox’s decision, and the court obliged.

“I’m happy for the guys who get to use the [dicamba] technology,” Ballard said, when asked about his clients now being unable to spray the herbicide while farmers who joined the legal fray just days before the ban can now apparently use it. “Maybe somewhere along the way, we could have done things differently, I don’t know. We respect the decisions; we’ll just continue on with our appeals.”

The two complaints in the circuit courts were almost identical and relied heavily on Ballard’s work. Both also were filed ex parte, meaning without the lawyers having to notify the attorney general’s office. “We basically copied the guts of it,” David Burnett, an Osceola lawyer, said Thursday after his clients won at least a temporary reprieve from the dicamba ban.

In both cases, the circuit judges said the farmers faced irreparable harm if they couldn’t spray dicamba on weeds now resistant to other herbicides.

The Plant Board implemented the ban after receiving nearly 1,000 complaints last summer of dicamba damage to soybeans, cotton, fruits, vegetables and other plants not tolerant of the herbicide. The board decided on the ban after several weeks of study, including the work of a task force appointed by the governor, a 30-day period for comment, a public hearing attended by about 300 farmers, and a series of legislative hearings.

Asked about potential damage to neighboring crops not tolerant of dicamba, Stoner, in Phillips County, said, “Everybody understands the rules [on spraying], and all my clients want to abide by the rules set in place.”

Adriane Barnes, a spokesman for the Arkansas Agriculture Department, declined comment, citing the continuing litigation. “There will be a clear response on Monday,” when the ban goes into effect, Barnes said.

She declined to say what formulations of dicamba can be used by the farmers who have won temporary restraining orders.

Last year, only a dicamba formulation by BASF, called Engenia, was registered in Arkansas for in-crop use for soybeans and cotton.

Monsanto’s Xtendimax dicamba hasn’t been registered in Arkansas by the Plant Board, but it does have a federal label detailing proper use that has been approved by the Environmental Protection Agency. Monsanto sued the state, but that also was dismissed in circuit court because of the sovereign-immunity ruling.

The office of Attorney General Leslie Rutledge said it couldn’t comment on the Phillips County case but said it was pleased with the Supreme Court’s decision on Fox’s ruling and will continue to defend the dicamba ban.