Near-identical lawsuits filed in two divisions of Pulaski County Circuit Court will be consolidated as farmers challenge the state Plant Board's new rule on the use of in-crop dicamba formulations.
Circuit Judge Timothy Fox on Tuesday granted a joint motion to consolidate two lawsuits -- one assigned to his court and the other to fellow Circuit Judge Morgan "Chip" Welch. Both lawsuits seek a permanent halt to the Plant Board adoption of a new rule allowing farmers to spray dicamba through June 30 across the top of dicamba-tolerant soybeans and cotton.
The attorney general's office, which is representing the Plant Board, and attorneys for the plaintiffs in the case before Fox said consolidation would "conserve the time and resources" of the courts and "eliminate unnecessary expense." They said Arkansas law requires that, in cases where multiple lawsuits involve the same claims and seek the same redress, the lawsuit filed first absorbs the other. Fox agreed.
Welch, in the lawsuit before him, already has entered a temporary restraining order through at least June 10 against the Plant Board's new rule. The order means the dicamba rule for 2020, when farmers had a May 25 dicamba cutoff and strict buffers, is in effect, making Tuesday the last day, at least for now, for farmers to legally spray in-crop dicamba.
Welch has scheduled another hearing for June 10.
The case before Welch is 60CV-21-2843, filed against the Plant Board by farmers and environmentalists, via Little Rock attorney Richard Mays. The case before Fox is 60CV-21-2965, filed by Ozark Mountain Poultry in Batesville and the Freedom to Farm group. Mark Allison, of the Dover Dixon Horne firm in Little Rock, filed that lawsuit.
Both lawsuits allege irreparable harm to farmers from a longer season to spray dicamba and contend that the Plant Board, in its process of adopting the June 30 dicamba cutoff for this season, failed to follow state law governing how boards and commissions can change rules and regulations.
Neither Welch nor Fox have waded into the merits of the specific allegations against the Plant Board's decision.
The hearings by Welch on Monday and by Fox on Tuesday are reminiscent of a flurry of efforts in 2018 to put a halt to the Plant Board's April 15 dicamba cutoff for that crop year. Such an early cutoff effectively banned the use of in-crop dicamba because few, if any, soybeans were planted by that date.
Groups of farmers who wanted to use dicamba that summer successfully asked local circuit judges -- in Mississippi, Phillips and Clay counties -- for temporary restraining orders over a span of a few days just prior to the April 15 cutoff taking effect.
The attorney general's office was quick to appeal those restraining orders to the Arkansas Supreme Court, which put all three on hold within a few days. (A fourth judge, in Craighead County, refused to issue such an order.)
The attorney general's office has not appealed Welch's temporary restraining order. As of 7 p.m. Tuesday, the office hadn't responded to questions about the lack of an appeal of Welch's order and the office's appeal of the 2018 restraining orders.
Also on Tuesday, the Supreme Court sent its mandate to Fox to begin the legal work of removing from office nine Plant Board members. The court had ruled on May 6 that a portion of a state law allowing private trade groups to select representatives to the Plant Board was unconstitutional.
The General Assembly, according to the majority opinion, could not legally delegate its appointment power to private entities. (The 1917 law creating the Plant Board also allowed the appointments by trade groups. Seven other members are appointed by the governor.)
The deadline for the attorney general's office to petition the Arkansas high court for a rehearing or appeal to the U.S. Supreme Court was on Monday, resulting in Fox's receipt of the case. Fox in 2018 had presided over a lawsuit challenging the board's composition and its dicamba-related decisions.
Fox had dismissed the farmers' lawsuit, citing a Supreme Court decision about three months earlier that the sovereign immunity clause in the state's 1874 constitution protects the state from being made a defendant in its own courts. Fox didn't specifically address the legality of the Plant Board's composition. (It was Pulaski County Circuit Judge Chris Piazza, now retired, who ruled in a separate but similar lawsuit in 2019 that the appointments by the nine trade groups were illegal.)
Welch has asked attorneys for the plaintiffs and the attorney general's office to file, by June 8, a joint brief outlining what effect, if any, the Supreme Court's ruling has on the Plant Board's new dicamba rule.
Both sides had said Monday during a hearing before Welch that they believed the ruling had no effect on the lawsuit. The court, in its May 6 ruling, didn't address the legality, or illegality, of any Plant Board decisions made prior to the ruling.
Also on Tuesday, shortly before agreeing to consolidate and transfer the lawsuits, Fox granted a motion to intervene by Grant Ballard, a Little Rock attorney whose lawsuit in 2017 led to the Supreme Court ruling against the Plant Board's nine trade-group appointees. Ballard's lawsuit was the first ever to challenge the board's composition.
Ballard said his clients are farmers who have already plotted out this year's crop plan, including decisions on what to plant, what fertilizers to spread, and what herbicides, including dicamba, to spray. Those who filed this year's lawsuits "now seek to rob Arkansas farmers of the value of their seed choice and leave them with herbicides they cannot legally use," Ballard wrote.
Welch has not yet acted on the same motion filed in his court by Ballard.
Ballard's clients include members of FarmVoice, a group that welcomed the June 30 cutoff set by the Plant Board, the longest dicamba spray season yet in the five years an across-the-top dicamba has been legal. Farmers had dicamba cutoffs of May 25 for the 2019 and 2020 crop seasons and an April 15 cutoff in 2018. The 2017 season had no cutoff, until the Plant Board approved a mid-season emergency ban because of the number of complaints of off-target damage it received.
Ballard also wrote that the farmers he represents couldn't expect help from the attorney general's office.
The attorney general has "previously made clear that they do not support the in-crop use of dicamba based herbicides," Ballard wrote, referring to the attorney general's defense of the Plant Board in previous litigation, including dicamba cutoff dates and the composition of the board. The attorney general's office typically represents state agencies, boards and commissions in any litigation.
Ballard also contended in his motion that reinstating the May 25 cutoff was wrong because it had been approved by a board with nine members sitting illegally. (The Plant Board, with the nine trade-group appointees, extended this year's spray date on May 3, three days before the Supreme Court ruling.)
Welch's temporary restraining order also ordered the Plant Board to notify interested parties of his decision.
In a statement Monday morning, a spokeswoman for the Department of Agriculture, the board's umbrella agency, said:
"Notice of the Court's action was posted Friday afternoon on the Plant Industries Rules and Regulations page. This morning [Monday] we also added it to the Dicamba Information page. Our request to the Arkansas Democrat-Gazette to publish a legal notice was also sent Friday afternoon. This morning we began the process of notifying those who submitted comments [during a 30-day comment period on the proposed new dicamba rule]. Notifications have been shared via social media on the Department's Facebook and Twitter accounts as well as the Plant Industries Facebook account."
The department's first news release to media organizations went out late Tuesday afternoon.