Farmers in Arkansas are fighting the state for the right to use dicamba this growing season, challenging a seasonal ban that began April 16 and runs through Oct. 31.

So far the results have been mixed, with about 155 farmers authorized to use the herbicide. But whether that permission will last until planting of soybeans and cotton begins in earnest is an open question. The issues raised, such as whether the Arkansas State Plant Board (ASPB) can claim sovereign immunity from lawsuits, will ultimately have to be resolved by the state Supreme Court. But in the meantime, the publicity has spawned more lawsuits.

“It’s growing,” attorney Grant Ballard of Ark Ag Law in Little Rock said of interest in the cases, which have been filed in Pulaski County, Mississippi County and Phillips County. Circuit court judges in the latter two counties issued orders last week allowing the grower plaintiffs to use BASF’s Engenia, the only product licensed for use in the state (Monsanto’s Xtendimax is not authorized for use), but the state is appealing those decisions.

Ballard is handling the Pulaski County case, in which he represents a group of farmers who have been dubbed the “Arkansas Six.” They initially won in county circuit court April 3, when Circuit Judge Tim Fox concluded their due process rights had been violated when the state Plant Board enacted the seasonal ban. The ban was issued after the state received nearly 1,000 complaints last year about damage to nearby crops and other plants from dicamba drift.

The Plant Board’s decision, however, has been stayed by the Supreme Court, which will hear the state’s appeal of Fox’s ruling.

One of the claims they are making is that the ASPB is unconstitutional because half of its 18 members are appointed “by private individuals and associations,” who are “unaccountable,” according to court papers filed in Pulaski County Circuit Court

“The farmers I represent feel they are underrepresented” on the board, Ballard said, adding that the appointment process is “akin to letting Marlboro appoint the director of the FDA.”

The state has fought back. It is asking the judges in Phillips and Mississippi counties to dissolve their temporary restraining orders (TRO) allowing growers in those cases to use dicamba.

“The Plant Board’s dicamba rule is lawful and the Attorney General (Leslie Rutledge) believes that the two circuit courts should vacate their temporary restraining orders,” the AG’s office said.

In its motion to dissolve the TRO in Mississippi County Circuit Court, the state argued that it does have sovereign immunity from lawsuits. In addition, the state said the farmers cannot show “irreparable harm” because Arkansas has a claims commission from which they can seek compensation.

The state also argued that since a committee of state legislators and the governor reviewed and approved the dicamba ban, there is no constitutional violation.

The circuit judge in that case, Tonya Alexander, found that the growers would suffer irreparable harm if not allowed to use dicamba.

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