JUDICIAL
MONSANTO COMPANY APPELLANT V. ARKANSAS STATE PLANT BOARD; WALTER “BRUCE” ALFORD; KYLE BALTZ; RUSSELL BLACK; RUSSELL BRAGG; ROBERT CAMPBELL; DR. RICK CARTWRIGHT; MARTY EATON; DANNY FINCH; BARRY WALLS; TERRY FULLER; GREG HAY; OTIS HOWE; JERRY HYDE; LARRY JAYROE; THOMAS POST; DR. CRAIG ROTHROCK; DENNIE STOKES; AND MATTHEW MARSH, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE ARKANSAS STATE PLANT BOARD APPELLEES, 2019 Ark. 194 (2019)
Monsanto Company (“Monsanto”) appeals the decision of the Pulaski County Circuit Court. The circuit court dismissed Monsanto’s amended complaint against the Arkansas State Plant Board and its members (together, the “Plant Board”) on the basis of sovereign immunity. The Court finds portions of this matter to be moot, and as to the remainder, they reverse and remand for further proceedings consistent with this opinion.
In short, the ultra vires exception is alive and well, and it applies in this case. Neither Andrews nor any subsequent opinion of this court eliminated the ultra vires exception to the sovereign immunity doctrine. Where a claim is based on alleged ultra vires conduct on the part of the State, and the claimant seeks only declaratory and injunctive relief, sovereign immunity is inapplicable. Here, each of the remaining claims in Monsanto’s amended complaint is based on allegations of ultra vires conduct on the part of the Plant Board. Moreover, Monsanto’s amended complaint seeks only declaratory and injunctive relief, and does not seek monetary damages. Monsanto’s claims are sufficiently developed, detailed, and specific as to properly allege ultra vires conduct, and under these circumstances, the Plant Board must address the merits of Monsanto’s claims.
ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD APPELLANTS V. GARY JOHNSON; RANDY JOHNSON; DAVIS FARM PARTNERSHIP/ROBERT TYLER DAVIS, ET AL. APPELLEES, 2019 Ark. 193 (2019)
This is a companion case to Arkansas State Plant Board v. Bell, 2019 Ark. 164, ___ S.W.3d ___, which we handed down on May 23, 2019. As in Bell, the Arkansas State Plant Board, Terry Walker, in his official capacity as director of the Arkansas State Plant Board, Otis Howe, in his official capacity as chair of the Arkansas State Plant Board, and members of the Arkansas State Plant Board (collectively, the “Plant Board”) appeal the circuit court’s temporary restraining order (TRO) that enjoined the Plant Board from enforcing its agency rule limiting the use of dicamba herbicides after April 15, 2018.
On appeal, the Plant Board makes the exact argument that it did in Bell: (A) The circuit court lacked jurisdiction to enjoin the Plant Board’s ruling limiting the use of dicamba herbicides because the complaint is barred by sovereign immunity; and (B) The complaint fails to state a claim for which relief may be granted on this issue because (1) there was no likelihood of success on the merits demonstrated; (2) it fails to plead irreparable harm; (3) an adequate remedy at law exists; (4) there was no ripe justiciable controversy; and (5) state agencies must first submit all proposed rules and regulations to the governor for approval, followed by review and approval by the legislature before finalization did not demonstrate a likelihood of success on the merits. However, the Plant Board has since repealed and replaced this rule, and the TRO has expired by operation of law. Accordingly, as we did in Bell, we dismiss the appeal as moot.
Appeal dismissed.
ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD APPELLANTS V. HARRY STEPHENS, STEPHEN HIGGINBOTHOM, WEST HIGGINBOTHOM, KIMBOROUGH STEPHENS, HERSHELL SCHWANTZ, JAMES RICKY HELTON, DAVID R. GREGORY, POINTER HALL, PHIL HALL, VERNON JOE SMITH, JERRY D. FLYNN, DONNIE DELINE, BOB BILLINGSLY, KRISTA TAGGART, LEVI CARLTON, BRIAN ALUMBUGH, BOBBY BYRD, TYLER MCCLENDON, LARRY MCCLENDON, NEIL CULP, BLAKE CULP, CHRIS CARNATHAN, JEFF CARNATHAN, JOHN BRYANT, MICHAEL TAYLOR, THOMAS TURNER, TERRY TOLAR, JOHN TOLAR, LYLE WHEELER, ALAN HARGRAVES, BRIAN STONER, EARNEST LARRY, BERNARD E. CROWLEY, PACE HINDSLEY, EUGENE HINDSLEY, JAMES V. RICHMOND, JOHN V. RICHMOND, HARRY G. STEPHENS, JOHN KING, LENNIE KYLE, GERE REEVES, ED GREGORY, CLAY YOUNG, CHARLES GALLOWAY, BARRY JONES, KYLE CANNON, CHARLIE BURRESS, TREY JACKSON, LEONARD ROHRSCHEIB, LEONARD ROHRSCHEIB, JR., KEATH GROVES, SHAWN HARDESTY, GENE JOHNSON, PAUL SELLERS, RAY DAWSON, DANNY MAY, ROGER MAY, KEITH FREELAND, SCOTT STEPP, BILLY DON HINKLE, TIMOTHY JONES, ALLEN LOVELESS, CALEB HALL, MICHAEL YOUNG, LANCE GRAY, KEITH WILKERSON, ROGER WILKERSON, AND DONNIE WILKERSON APPELLEES, 2019 Ark. 182 (2019)
Appellants Arkansas State Plant Board and Terry Walker, in his official capacity as director of the Arkansas State Plant Board (collectively, the Plant Board), appeal the circuit court’s temporary restraining order that enjoined the Plant Board from enforcing its agency rule limiting the use of dicamba herbicides after April 15, 2018. Because the Plant Board has since repealed and replaced this rule, we dismiss the appeal as moot. See Ark. State Plant Bd. v. Bell, 2019 Ark. 164.
WESTERN WATERSHEDS PROJECT, CENTER FOR BIOLOGICAL DIVERSITY, & WILDEARTH GUARDIANS, Plaintiffs, v. DAVID BERNHARDT, Sec’y of the Interior, JEFFREY ROSE, Dist. Manager Burns Dist. Bureau of Land Mgmt., & BUREAU OF LAND MANAGEMENT, Defendants., No. 2:19-CV-0750-SI, 2019 WL 2372595 (D. Or. June 5, 2019)
Plaintiffs bring this action challenging Defendants’ grant of a renewed Grazing Permit (the “Permit”) to Hammond Ranches, Inc. (“HRI”) on four allotments—Mud Creek, Hammond, Hammond FFR, and Hardie Summer. Plaintiffs argue that then-Secretary of the Interior Ryan Zinke and Defendant Bureau of Land Management (“BLM”) acted arbitrarily and capriciously in violation of the Administrative Procedures Act (“APA”) because they failed to follow the requirements of the National Environmental Policy Act of 1969 (“NEPA”), the Federal Land Policy and Management Act of 1976 (“FLPMA),and applicable BLM regulations. Plaintiffs allege that Defendants violated these statutes and regulations when Secretary Zinke ordered that HRI’s previous grazing permit be renewed without conducting the analyses required by the FLPMA, BLM regulations, and NEPA, and under the 2015 Oregon Greater Sage-Grouse Approved RMP Amendment (“GSG-ARMPA”). Plaintiffs also allege that Defendants violated these statutes when BLM issued a categorical exclusion environmental review and approval (“CX”) and the approved Permit without performing the required analyses. Plaintiffs further allege that they were not provided copies of the Permit and CX until April 2019, after the first wave of grazing had already begun.
Plaintiffs filed a motion for temporary restraining order (“TRO”) and preliminary injunction to enjoin grazing on the four allotments. Before the Court is Plaintiffs’ TRO motion. Plaintiffs request an order temporarily enjoining Defendants from allowing turnout and grazing of livestock on the Mud Creek and Hardie Summer allotments, until the Court can adjudicate Plaintiffs’ motion for preliminary injunction. Defendants respond to Plaintiffs’ motion for a TRO by arguing that Plaintiffs have not demonstrated that they will suffer irreparable harm in the absence of immediate temporary relief, and that the balance of the equities and public interest considerations do not support issuing a temporary restraining order. Defendants do not argue that Plaintiffs have failed to show a likelihood of success on the merits. Defendants also did not dispute most of the facts presented by Plaintiffs. On June 3, 2019, the Court held a hearing on Plaintiffs’ motion. The Court grants Plaintiffs’ motion for a temporary restraining order.
Share: