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9 members taken from state Plant Board

by Stephen Steed | June 11, 2021 at 7:08 a.m.
FILE — Participants at a meeting of the State Plant Board at the Embassy Suites Hotel in west Little Rock look over proposed rules for the use of the herbicide Dicamba in this April 28, 2021 file photo. (Arkansas Democrat-Gazette/JOHN SYKES JR.)

Nine members of the state Plant Board were removed from office Thursday by Pulaski County Circuit Judge Timothy Fox, who was acting on a mandate from the Arkansas Supreme Court.

The Supreme Court had ruled last month that the General Assembly had illegally given its appointment powers to private entities who selected representatives to the Plant Board.

"In a case where there is an unconstitutional delegation of legislative power to a private entity, there can only be one remedy -- the removal of unconstitutionally appointed board members," the court majority said. "Accordingly, we reverse and remand with specific instructions for the circuit court to remove the unconstitutionally appointed Board members."

The trade-group appointments are rooted in the same state law that created the Plant Board in 1917 to deal with a plant blight that threatened the state's then-vibrant apple industry.

Fox issued the order without comment, simply listing the names of the nine Plant Board members and the associations they represented.

The court did not invalidate any Plant Board decisions in its rulings on two lawsuits filed separately by Monsanto and by six farmers challenging the board's composition. Both lawsuits arose from Plant Board decisions related to the use of dicamba, a herbicide, that has consumed much of the board's attention since 2016.

The nine members removed from the board and their associations are: Chairman Terry Fuller (Arkansas Seed Growers Association); Tommy Anderson (Arkansas Agricultural Aviation Association); Marty Eaton (Arkansas Seed Dealers Association); Mark Hopper (Arkansas Pest Management Association); Brad Koen (Arkansas Crop Protection Association); Scott Milburn (Arkansas Forestry Association); Mark Morgan (Arkansas State Horticultural Society); Jason Parks (Arkansas Green Industry Association), and Terry Stephenson (Arkansas Oil Marketers Association).

Scott Bray, director of the state Department of Agriculture's Plant Industries Division, sent an email Thursday afternoon to staff and Plant Board members, including those who lost their posts.

"As I understand it, as of 9:22 a.m., those listed in the Order are no longer members of the Board," Bray wrote. "I want to thank each of you for your service to the Board and Arkansas Agriculture. I know it has been challenging at times but also, hopefully, rewarding as well. Excellent work all and thank you again for your service."

Fox's order leaves the Plant Board with seven members appointed by the governor to two-year terms: Bruce Alford, to represent the forage industry; Kyle Baltz of Pocahontas and Matthew Marsh, representing farmers at large; Darrell Hess, plant food industry; Reynold Meyer, livestock; Sam Stuckey, cotton farmers, and Barry Walls, rice growers.

Two members -- Ken Korth and Nathan Slaton -- represent the University of Arkansas Division of Agriculture, but they do not have voting privileges.

Fox received the mandate to remove the members because it was his ruling, in the lawsuit by the farmers, that indirectly upheld the legality of the nine trade-group appointments.

Fox never ruled specifically on the appointments by the nine trade groups; he merely dismissed the farmers' lawsuit in March 2018, citing a Supreme Court ruling just three months earlier that the Arkansas Constitution's sovereign-immunity doctrine prevented the state from being made a defendant in its own courts.

Since its sovereign-immunity ruling, the court, though, has accepted a handful of cases involving the state as a defendant, including the two lawsuits against the Plant Board's composition. Associate Justice Karen Baker dissented: "[T]he majority cannot pick and choose when an exception or exemption [to the sovereign immunity ruling] may apply."

The Plant Board's composition had never been legally challenged until the farmers and Monsanto filed their lawsuits.

Until Fox's order, the only direct ramifications of the Supreme Court's ruling were the cancellation of meetings in May and June of the full Plant Board, its pest control committee, and the Bureau of Standards. The latter two panels had Plant Board members who were among the nine trade-group appointees.

The Supreme Court cited, as a precedent, its ruling in Leathers v. Gulf Rice Arkansas, a lawsuit challenging a 1995 law in which the General Assembly allowed a private group of rice producers to impose an assessment on rice buyers to fund the state rice research and promotion board. The court said the General Assembly unconstitutionally delegated authority to the rice producers.

The state has about 300 boards and commissions, but apparently only the Plant Board had the hybrid of gubernatorial and trade-group appointments.

Act 540 of 2017 revamped how members of dozens of state licensing boards and various advisory councils to state agencies were selected but didn't address the Plant Board's composition.

Previous law allowed associations and trade groups whose members are subject to the various licensing boards to submit names to the governor for appointments to those boards. Act 540 of 2017 eliminated those nominations, requiring only that the governor's office consult those groups.

Legislators in the late 1990s considered a bill, briefly, to alter how Plant Board members were selected.

That bill, by the late Sen. Jim Argue, D-Little Rock, would have had the governor appoint nine members with voting privileges and allowed several trade groups to select non-voting representatives.

Argue filed the bill at a time the Plant Board, after decades of attracting little attention and few headlines, was being widely criticized for how it responded to a crisis in which Facet, a herbicide used in rice, was destroying backyard tomato gardens and commercial tomato fields across the Arkansas Delta.

Presidents of various trade groups testified against the bill during a committee hearing.

Such witnesses "have a direct financial interest in keeping the board like it is," Argue said after the hearing. "There's something amiss when the regulated show up to praise the regulator." The bill died in committee without a vote.

Joshua M. Silverstein, a law professor of the University of Arkansas at Little Rock School of Law, said recently the Supreme Court's ruling against the Plant Board's composition was a valid one. "Courts have found it generally to be a bad idea to have private groups making these kind of appointments," Silverstein said.

The General Assembly this spring approved House Bill 1210, now Act 361, which allows trade groups to still have representatives on the Plant Board. The new law, which won't take effect until late summer, allows the trade groups to submit the names of at least two nominees to the governor. The governor would select a representative, who would then have to be confirmed by the Senate.

Expecting a Supreme Court ruling adverse to the Plant Board, supporters of the bill projected it as a "cure." The bill's supporters didn't anticipate the Supreme Court's order for the removal of the nine trade-group members, because the bill contained language, not to be codified, stating, "Current members of the State Plant Board shall serve out the remainder of their terms and are not required to be replaced to meet the changes of this act."

The new law is problematic too, Silverstein said, because it limits the governor to nominations submitted by the trade groups. If challenged, that law likely will be overturned too, Silverstein said.

Despite a sponsor's claim during a committee hearing that the governor can reject the nominations and ask for more names, the new law does not specify that. "The governor has little, if any, recourse if he doesn't like those nominations and if he can't make nominations of his own," Silverstein said.

"It's really a bad idea to have industry groups appoint their own regulators," he said. "Expertise, certainly, is needed on something like the Plant Board. But that problem is secondary to the bigger problem of regulators being appointed by private groups."

Act 361 also adds a Plant Board member, appointed by the governor, to represent soybean farmers. (Farmers representing cotton and rice growers, appointed by the governor, have served on the Plant Board for decades. The governor also has two appointees to represent farmers at-large.)

Senate Bill 80, by Sen. David Wallace, R-Leachville, sought to give the governor complete control over all Plant Board appointments, removing the trade groups' participation entirely. It was defeated in a Senate committee.

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