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Dicamba spraying ruled OK for now

High court sides with Plant Board by Stephen Steed | June 8, 2021 at 4:01 a.m.

The Arkansas Supreme Court late Monday granted an emergency stay of a Pulaski County circuit judge's temporary restraining order against the state Plant Board's 2021 rules for spraying dicamba.

The court, in an appeal by the attorney general's office, entered the order without comment shortly after 4 p.m.

"Today's win at the Supreme Court allows Arkansas's row crop farmers to focus on feeding people rather than fooling with overreaching government mandates," Attorney General Leslie Rutledge said in a statement.

Dicamba's use has divided Arkansas' farming community the past six years, with the filing of some 1,600 complaints of damage to crops, vegetation crucial to bees, backyard gardens and ornamental trees and shrubs.

Mike Wallace, an Arkansas farmer who filed damage complaints, was shot and killed in 2016 over a dicamba-related dispute, according to the sheriff's office that investigated his death. The other farmer in the dispute was convicted and sentenced to 24 years in prison.

Pulaski County Circuit Judge Morgan E. "Chip" Welch on May 21 issued a temporary restraining order against the Plant Board's new rule, then extended it three days later to run through Thursday.

The Supreme Court's stay of Welch's order means the Plant Board's rule allowing farmers to spray in-crop dicamba formulations through June 30 is back in effect, the attorney general's office said.

Welch's order grew out of a lawsuit filed in early May by a group of conservationists and farmers opposed to the use of dicamba deeper into the growing season because of the herbicide's tendency to move off target to susceptible crops as temperatures and humidity increase.

The lawsuit alleged legal flaws in the board's compliance with the Arkansas Administrative Procedure Act, which governs how state boards and commissions can go about changing their rules and regulations. Ozark Mountain Poultry and another group of farmers have filed a similar lawsuit.

Richard H. Mays, a Little Rock attorney who filed the lawsuit that won Welch's temporary restraining orders, said Monday that he and other attorneys involved in the cases may need to ask the Supreme Court for a clarification of its emergency stay. The order references a "stay pending appeal," Mays said.

The use of that phrase, Mays said, implies a halt to further proceedings in circuit court over the lawsuits' claims that the Plant Board violated the Administrative Procedure Act. "I think maybe the order was unintentionally overbroad," Mays said. "I am not sure the Supreme Court intended to stay the entire case."

Welch has scheduled a hearing for Thursday afternoon on the merits of the two lawsuits.

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