The previous articles in this series have all looked at lawsuits initiated by plaintiffs who alleged that they were harmed by use of dicamba-based pesticides. This article, the final in the series, will examine three state court cases brought by plaintiffs challenging regulatory efforts to limit the use of dicamba.

Background

In 2017, two lawsuits were brought against the Arkansas State Plant Board (“Plant Board”) over rules that the Board had adopted restricting the use of dicamba-based herbicides within the state of Arkansas. Monsanto Company (“Monsanto”) and a group of Arkansas farmers both initiated separate lawsuits against the Plant Board, alleging that the regulatory body had unlawfully prevented the use of  dicamba-based herbicides during the 2017 and 2018 growing seasons. The lawsuits followed the Plant Board’s passage of a rule in late 2017 that prohibited in-crop use of dicamba during the 2018 growing season from April 16 to October 31.

The rule was the second of its kind. In 2016, the Plant Board had passed a rule that prohibited in-crop use of Monsanto’s XtendiMax during the 2017 growing season from April 15 to September 15. However, the Plant Board approved Engenia, a dicamba-based pesticide manufactured by BASF Corporation for use in 2017. The following year, the Plant Board banned all dicamba-based herbicides. In both cases, the plaintiffs argued that the Plant Board’s rules were invalid.

The Monsanto Case

In its case, Monsanto challenged the legality of the rules for the 2017 and 2018 growing seasons. The company argued that the Plant Board acted arbitrarily and beyond its statutory authority in passing the rules.  Specifically, Monsanto alleged that the Plant Board had acted unlawfully by requiring Monsanto to comply with a requirement that it submit two years of research conducted by University of Arkansas scientists assessing the volatility of XtendiMax. Monsanto also asserted that the way the Plant Board chose its members was unconstitutional.

The case, Monsanto Co. v. Arkansas State Plant Bd., No. 60CV-17-5964 (Cir. Ct. Pulaski Cty. 2019) was originally filed in the Pulaski County Circuit Court in late 2017. However, the court dismissed the case, concluding that it was barred by the sovereign immunity doctrine which is the rule of law that renders States immune from civil suits and criminal prosecution. Monsanto appealed that ruling to the Supreme Court of Arkansas which concluded that Monsanto could bring its claims because the company alleged that the Plant Board had violated several Arkansas statutory and constitutional provisions, and that it had exceeded its delegated authority. By the time the court issued that opinion, the 2017 and 2018 rules had expired and the Plant Board had issued new regulations addressing the use of dicamba during the 2019 growing season. Those regulations significantly increased the amount of time during which dicamba-based pesticides could be applied in-crop in Arkansas by setting the cut-off date at May 25 instead of April 16. In light of those developments, the court dismissed the portions of the lawsuit that sought to invalidate the 2017 and 2018 rules, but sent the portions of the lawsuit relating to the requirement that Monsanto had to submit research conducted by scientists at the University of Arkansas to the Plant Board, and to the constitutionality of the Plant Board’s composition back to the circuit court to review

Back before the circuit court, Monsanto made two main claims. First, Monsanto argued that the Plant Board’s requirement that any party applying to have a pesticide registered in the state of Arkansas must submit two years of research conducted by scientists at the University of Arkansas violated the Commerce Clause of the United States Constitution because it unfairly burdened the economic interest of out-of-state research facilities. Second, Monsanto argued that the state law allowing private interest groups, instead of the Governor, to appoint half of the Plant Board’s eighteen members violated the Arkansas State constitution because it was an unlawful delegation of the appointment power.

In an order issued in December, 2019 the court concluded that the Plant Board’s regulation requiring that parties submit two years of research conducted at the University of Arkansas for any pesticide it wanted to register in the state of Arkansas did not violate the United States Constitution. The court determined that the requirement did not unfairly burden out-of-state research facilities. However, the court did agree with Monsanto that the statute permitting private interest groups to appoint members to the Plant Board was an unconstitutional delegation of the appointment power. Accordingly, the court invalidated the statute. The Plant Board has appealed the decision to the Arkansas Supreme Court.

The Farmers’ Case

The second lawsuit filed against the Plant Board over its dicamba regulations was brought by a group of Arkansas farmers. In McCarty v. Arkansas State Plant Bd., 60CV-17-6539 (Cir. Ct. Pulaski Cty. 2019), the plaintiff farmers challenged the rule adopted by the Plant Board prohibiting the use of dicamba in 2018 from April 16 to October 31. The farmers were all soybean farmers who had used Engenia on their fields in 2017 to combat palmer amaranth, also known as pigweed, which has grown resistant to other pesticides. The farmers had hoped to continue using dicamba to suppress pigweed during the 2018 growing season.

Like Monsanto, the plaintiffs in McCarty v. Arkansas State Plant Bd. argued that the 2018 rule was invalid because the statute governing the formation of the Plant Board violated the Arkansas Constitution by allowing private interest groups to appoint half of the Board’s members. According to the plaintiffs, this was an invalid delegation of legislative power to private interests. The plaintiffs asked the court to void the regulations the Plant Board had adopted regarding the use of dicamba during 2018 because the power of the Plant Board to was not constitutionally valid.

As in the Monsanto case, the Circuit Court of Pulaski County dismissed the plaintiffs’ complaint in McCarty v. Arkansas State Plant Bd. on the basis of sovereign immunity. The plaintiffs appealed that decision to the Supreme Court of Arkansas, which concluded that the plaintiffs’ constitutional claims were not subject to the sovereign immunity defense. Although the plaintiffs’ claims specifically relating to the regulation for the 2018 growing season were moot by the time the case reach the Supreme Court in 2019 because the regulation was no longer in effect, the court concluded that the plaintiffs’ claims that the Plant Board was unconstitutionally formed should be heard by the lower court.

Back before the Circuit Court of Pulaski County, the judge issued a ruling on December 2, 2019 dismissing the case in favor of the Plant Board. The plaintiffs have appealed this decision to the Arkansas Supreme Court.

Recent Filings

In late 2019, before after both Monsanto Co. v. Arkansas State Plant Bd. and McCarty v. Arkansas State Plant Bd. had been sent back to the lower court, but before the lower court issued a decision in either case, another suit was filed against the Plant Board over its regulation of dicamba. In Todd v. Arkansas State Plant Bd., No. 60CV-19-8569 (Cir. Ct. Pulaski Cty. 2019), the plaintiff argues that the Plant Board made constitutional violations when it fined him for dicamba use during 2018 because the Board is formed in violation of the Arkansas State Constitution. Like the previous two cases, the plaintiff in Todd v. Arkansas State Plant Bd., argues that the state law allowing private interest groups to appoint members to the Plant Board is an unconstitutional delegation of legislative power. Therefore, the plaintiff argues that the Plant Board’s decision to fine him for dicamba use during 2018 should be rendered void.

This case is in early stages, and may ultimately depend on the outcome of the pending appeals in Monsanto Co. v. Arkansas State Plant Bd. and McCarty v. Arkansas State Plant Board.

Impacts

Although the conclusions of both Monsanto Co. v. Arkansas State Plant Bd., McCarty v. Arkansas State Plant Board, and Todd v. Arkansas State Plant Bd. will only be applicable in Arkansas, their impact has the potential to extend beyond the state’s boundaries by influencing how proponents of dicamba may seek to block restrictions of the pesticide by state or federal governments. In all likelihood, dicamba use is an issue that will continue to appear before courts at all levels.

To read the Pulaski County Circuit Court order in Monsanto Co. v. Arkansas State Plant Bd., click here.

To read the Arkansas Supreme Court opinion in Monsanto Co. v. Arkansas State Plant Bd., click here.

To read Monsanto’s complaint in Monsanto Co. v. Arkansas State Plant Bd., click here.

To read the Pulaski County Circuit Court order in McCarty v. Arkansas State Plant Bd., click here.

To read the Arkansas Supreme Court opinion in McCarty v. Arkansas State Plant Bd., click here.

To read the plaintiffs’ complaint in McCarty v. Arkansas State Plant Bd., click here.

To read the plaintiffs’ complaint in Todd v. Arkansas State Plant Bd., click here.

To read the previous article in this series discussing a lawsuit brought against EPA over the registration of XtendiMax, click here.

To read the first article in this series providing an overview of lawsuits concerning dicamba, click here.