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A circuit judge on Friday dismissed a lawsuit filed by Monsanto against the state Plant Board for decisions that have kept the company's dicamba herbicide out of the Arkansas market.

Pulaski County Circuit Judge Chris Piazza said the Arkansas Supreme Court was clear in its ruling last month that the state cannot be made a defendant in its own courts but added, "It's obvious Arkansas is going to have to come up with a constitutional amendment" allowing lawsuits against the state in some circumstances.

The board, a division of the Arkansas Agriculture Department, approved a regulation prohibiting the spraying of dicamba from April 16-Oct. 31, effectively defeating the purpose of new formulations of the herbicide for use on dicamba-tolerant crops during the growing season.

Monsanto sued, claiming it has sustained "irreparable harm" from various actions by the Plant Board the past two years in violation of state and federal law.

Scott Trotter, a Little Rock attorney representing Monsanto, also said the composition of the board -- with about half of its members appointed by the governor and others selected by agriculture-related associations and trade groups -- was unconstitutional.

Piazza heard arguments for nearly four hours from two lawyers with the attorney general's office, which was representing the Plant Board, and from four lawyers representing Monsanto.

Gary Sullivan, an assistant attorney general, argued that the state cannot be sued but that, if the lawsuit was allowed to continue, the Plant Board acted legally and relied on science to implement the April 16-Oct. 31 dicamba ban.

Without ruling on the specific claims raised by Monsanto, Piazza said Plant Board records from meetings and public hearings indicate that its members did extensive work in coming up with the dicamba cutoff date.

It took five months for the board's new regulation to take effect, including the recommendations of a specially appointed task force, a public hearing that attracted several hundred farmers and, ultimately, approval by the governor and legislators.

Piazza said that, while the board's makeup was "kind of unusual," its members had all taken an oath of office, which he considered to be a "cornerstone" of honesty and fair-dealing. "They're in the position to look at all the information people were bringing to them," he said.

While dismissing the lawsuit, Piazza kept alive Monsanto's request for injunctions against the April 16-Oct. 31 cutoff date in case the Supreme Court makes any clarifications to its Jan. 18 ruling on the state's immunity from lawsuits. A group of Arkansas farmers has a similar lawsuit pending before another Pulaski County circuit judge.

The state Plant Board enacted the ban after receiving nearly 1,000 complaints of dicamba damage to other crops not dicamba-tolerant, including other varieties of soybeans and cotton, vegetables, fruit, trees, shrubs and vegetation crucial to honey bees' ability to pollinate. The board accepted weed scientists' arguments that dicamba was lifting off sprayed plants and moving miles away to susceptible crops.

While only BASF's Engenia was allowed in Arkansas last year, Monsanto disputed the weed scientists' findings and said applicators' failure to follow instructions caused most of the problems. Farmers have filed lawsuits against Monsanto in federal courts in Arkansas and other states.

Monsanto developed dicamba-tolerant soybeans and cotton to help farmers fight weeds now resistant to other herbicides and brought in a new dicamba that was supposed to be less susceptible to moving off target.

Terry Walker, director of the Plant Board, said after the hearing that he was "pleased and relieved" with the ruling.

Scott Partridge, a Monsanto vice president, said the company was disappointed by the ruling and will "consider additional legal steps that might be appropriate."

A Section on 02/17/2018

Print Headline: Can't sue state over dicamba, firm told

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