The boardroom of the Arkansas Department of Agriculture will feel more like a courtroom today as a farmer challenges dicamba complaints filed against him in 2018.
A second formal hearing before the state Plant Board for another farmer had been set for Thursday morning, but that was canceled Tuesday and will be rescheduled, according to the department.
In such hearings, farmers or applicators accused of violating Arkansas pesticide law can have attorneys represent them. The attorney general's office represents the board. A hearing officer is on hand to rule on legal questions, such as whether particular evidence or an exhibit is admissible. A court reporter makes a record of the proceedings. Both sides can call witnesses who, in turn, can be cross-examined.
The Arkansas Administrative Procedure Act, under Arkansas code 25-15-201, sets out the process.
Such hearings are open to the public under the Arkansas Freedom of Information Act, which also requires the Plant Board to deliberate each case in public and to vote in public.
Today's hearing begins at 9:30 a.m., with the first case involving Jeff Todd of Clarkton, Mo. A second case involving Todd is set for 1 p.m. today.
Todd is challenging the findings of Plant Board inspectors and staff members that he illegally sprayed dicamba twice in 2018, on land he farms in Arkansas, in violation of the April 15 cutoff date set for that year by the Plant Board. Todd was first cited in June 2018 and again about two months later, accused of violating the ban and spraying in a way that resulted in dicamba moving off target, according to the case files.
Todd also is accused of failing to provide and keep spray-application records, not completing special training required of dicamba applicators, and not having a private applicator license. Todd is accused of 11 violations in total, with possible fines of up to $59,000, according to the files.
The other hearing had been set for Jimmy McDonald of Marked Tree, who has been cited for four violations of Arkansas pesticide law, including spraying dicamba past the April 15 cutoff last year and causing off-target movement of the herbicide. McDonald also was accused of failing to keep required records and for not completing special training required of dicamba applicators. His case file showed possible fines of up to $28,000.
Because all three cases involved claims of damage to others' crops, they were being considered possible "egregious" violations of Arkansas pesticide law, punishable by fines of up to $25,000 per violation. Other violations, such as failure to keep records, have a range of fines of a few hundred dollars that can be doubled if the same offenses were committed within the previous three years.
Decisions by the Plant Board against the farmers can be appealed in circuit court. Fines levied and collected go to a Plant Board scholarship fund, not to farmers whose crops were damaged.
Monsanto, now owned by Bayer, developed dicamba-tolerant cotton and soybeans to help farmers in Arkansas and other row-crop states in their fight against weeds that have developed resistance to other herbicides, including Monsanto's Roundup. Other varieties of cotton and soybeans, however, can be damaged by the herbicide, as can fruits, vegetables and ornamental trees and shrubs.
The Plant Board during the past three years has been inundated with complaints of dicamba damage to crops and other vegetation not tolerant of the herbicide. It received 1,014 complaints in 2017, 200 in 2018, and 209 as of Sept. 30 this year.
Most complaints are filed by farmers, although some are initiated by state inspectors when they see possible signs of dicamba usage or damage on their drives across farmland. Under either circumstance, inspectors collect evidence from the fields in question, such as taking samples and photographs of dead or dying pigweed or of vegetation or crops showing symptoms of dicamba exposure. Those samples are then submitted to a laboratory for analysis. Inspectors also have the authority under Arkansas law to inspect a farmer's or applicator's spray records. All of that is put into a case file.
When Agriculture Department inspectors find possible violations of Arkansas pesticide law, farmers can meet informally with staff members to settle the matter or, failing that, can ask to meet with the Plant Board's pesticide committee. Todd and McDonald, before the latter's hearing was canceled, had chosen to take their challenges directly to the full board.
Such formal hearings are rare, with the last ones held in September 2016.
In those hearings, the board upheld the recommendations of its pesticide committee to levy $5,400 in fines in four cases involving three southeast Missouri farmers found to have illegally sprayed dicamba on dicamba-tolerant cotton that summer on fields they farmed just across the Arkansas border. At the time, no dicamba formulations had been approved by federal regulators for in-crop use. The maximum fine at the time was $1,000.
In 2017, the General Assembly increased the maximum fine for misuse of dicamba and other auxin-based herbicides to $25,000 for "egregious" violations, defined as only if "significant off-target crop damage" occurs.
Because symptoms of dicamba damage don't show up for some 10 days to two weeks after exposure and because dicamba, generally, is susceptible to off-target movement -- even to crops miles away -- Plant Board members found it difficult to levy the new, stiffer fines.
This year, the General Assembly simplified the language and said $25,000 fines could be levied for "egregious" violations, without the caveat of how much damage is found. The new law can't be applied retroactively.
While some Plant Board members and staff members have said they believe any violation of the spray ban can be an egregious violation, they also have been reluctant this summer in getting into specifics of how better to enforce the ban because of the three cases looming this week. The law governing the hearings prohibits board members from "ex parte" discussion of the cases.
Business on 10/23/2019