With Arkansas dicamba spraying cutoff of April 15 having passed, the ability of many growers to spray the herbicide on Xtend crops is still up in the air.
Even as several cases wind their way through the legal system, there may be several hundred farmers currently spraying dicamba over-the-top. However, the original six growers first allowed to legally disregard the deadline aren’t among them.
A quick recap of a confusing few months: Following a 2017 growing season that saw nearly 1,000 dicamba-related drift complaints and numerous hearings, the Arkansas Plant Board — later backed by the state legislature — imposed an April 15 spraying cutoff for the herbicide. That was followed by suits against the Plant Board from Monsanto (the company behind both Xtend crops and the dicamba formulation, XtendiMax) and a group of six farmers wanting the spraying window pushed back at least several weeks.
Both cases were dismissed due to an Arkansas Supreme Court ruling in January saying state entities cannot be sued. However, the lawsuit of “the six” ended with the judge saying they were not bound to the April 15 spraying cut-off. Being unable to sue, he said, also meant they were unable to fully access due process rights.
Other Arkansas growers were paying attention and, shortly before the cutoff was to be imposed, groups of farmers in Mississippi County and Phillips County filed their own suits.
Within hours of those suits, though, “the six” were again disallowed from spraying. What happened?
Attorney General Leslie Rutledge “appealed the order of the Pulaski County Circuit Court allowing us the exception to the April 15 cutoff date,” says the group’s attorney Grant Ballard. “They appealed it to the (state) Supreme Court and also asked for a stay of the Circuit Court’s decision pending appeal. That effectively means until the Arkansas Supreme Court decides who’s right and who’s wrong, and the status quo should remain in place. So, pending resolution of the appeal, the Supreme Court has stayed the Circuit Court’s decision.”
To further complicate the matter, “we filed a motion for relief from stay asking the Supreme Court to allow us the option to apply dicamba herbicides prior to the resolution of the appeal,” says Ballard.
A decision on that may come by the end of the week of April 23.
What are the next steps for “the six”?
“The relief from stay may be resolved next week which may allow us an exception to the cutoff date, like other farmers in the state now have. We have to work through the appeal and that could take through the summer. But we’re going to fight because we think we’re right and I believe we’ll prevail.
“I think it says a lot that so many farmers in our region are getting involved in the court process to protect their rights. It’s a positive statement and something a lot of us are proud to be involved with.”
The Mississippi County and Phillips County suits are also expected to have key hearings in a few days. First Judicial Circuit Judge Christopher Morledge scheduled a hearing for April 26 at 9 a.m. in Phillips County. The hearing in Mississippi County has been scheduled for April 30.
Also in the mix now are several other farmer group suits, one from Clay County, which has a hearing scheduled for April 27.
“In Mississippi County, we’re representing around 114 farmers,” says Helena-based attorney Kyle Stoner, who is working with David Burnett on the cases. “In Phillips County, we’re up to 80 farmers.
“Our expectation is to ask the judge to give us a preliminary injunction allowing us to use dicamba until there can be a hearing on the merits. As of right now, it’s a TRO (Temporary Restraining Order) so it’s obviously temporary. We want to seek a preliminary injunction.”
Understandably, there is some confusion about what the farmers under the TROs are allowed to do. Are they allowed to spray dicamba now, past the deadline?
“Yes,” says Stoner. “The TRO allows them to spray past the deadline until the court says otherwise.”
So there are growers out there potentially doing that?
“They have the ability, yes.”
Asked about the state’s response to the east Arkansas farmer suits, Stoner said, “Right now, they’ve asked the court to dissolve the TRO — that’s what the hearings are for next week. Then, the court will decide to either dissolve the TRO or grant a preliminary injunction. That’ll decide whether (farmer clients) will allowed be to spray.”
There is also confusion about whether the state is paying attention to anyone who might be spraying dicamba past the deadline. Stoner says don’t believe rumors the state isn’t paying attention.
“My understanding is they’ve already called chemical distributors and pulled records of who has bought what and when they bought it. They’ve preemptively, before there’s been the first complaint for dicamba spraying, contacted multiple distributors. I know of those people personally. They’ve already asked for records. I know some haven’t given over the records yet, but I don’t know about others.”
Is Stoner advising clients on whether to spray or not? Leaving it entirely up to them?
“I’ve advised my clients they have the ability to spray. I’ve told them the rules are still in place and they still need to abide by things like wind restrictions and use common sense.”
Shortly before April 15, Scott Partridge, Monsanto vice president of global strategies, said the company, for the first time in the state, would provide XtendiMax to the six growers “and, frankly, any other growers able to obtain the type of relief these six obtained.”
Was there any connection between Monsanto and Stoner’s efforts?
“There was no coordination,” says Stoner. “I’d heard they were going to allow the ‘Arkansas six’ to spray XtendiMax. That ruling was stayed, so they’re no longer allowed to spray. I’m not sure if they intend on supplying” others currently allowed to spray.
Phillips County farmers who have spoken to Delta Farm Press believe their case is strong. Stoner said, “We have a few more claims than the original six and some of those stem from the ruling the six obtained. We’re not doing exactly the same as the six. We have different issues that need to be addressed by the court. My clients are optimistic and we’re eager to hear what the judge says.”
Regardless, the continued fraying of neighborly ties between the pro- and anti-dicamba farming contingents seems inevitable. Says one grower in the anti-dicamba camp: “It may not be right, but memories are long. You’re crazy if you think we all haven’t been looking over the names listed in those complaints. Is your neighbor part of it? Is it your golfing buddy? That’s just what is happening.”
On Thursday evening (April 19), growers involved in the Phillips County case were advised the Arkansas Attorney General’s office appealed the Temporary Restraining Order to the Arkansas Supreme Court. “Unfortunately, this means that the Circuit Judge no longer has the jurisdiction … to hear our case until the Supreme Court has ruled on the appeal,” reads an email sent out to the farmers. “This means (the) hearing on April 26 at the Phillips County Courthouse has been canceled.”