The Arkansas dicamba saga continues to percolate through the legal system as an April 15 spraying cutoff date approaches.
Following the decision earlier this year to go through with the cutoff — which came after endless regulatory hearings and nearly 1,000 off-target complaints during the 2017 growing season — six farmers filed suit against the Arkansas State Plant Board in order to have the spraying window widened. The six later circulated a petition signed by likeminded farmers and distributed “Farmers Need Dicamba” signs that now pepper roadsides throughout row-crop country.
Yet another twist to the tale came in January when the Arkansas Supreme Court ruled that state entities can’t be sued. That decision ultimately led, weeks later, to the dismissal of a suit by Monsanto against the plant board. Monsanto is the company behind dicamba-tolerant soybeans, cotton and a new formulation of dicamba, XtendiMax with VaporGrip.
All that teed up a March 30 hearing in Pulaski County Circuit Judge Tim Fox’s courtroom. There, Fox ruled the six farmers’ suit also had to be dismissed under the same reasoning used in the Monsanto case.
However, Fox threw the six a bone saying they were not bound to the April 15 spraying cut-off. Being unable to sue, he said, meant they were unable to fully access due process rights.
“We were sitting there in the court,” says Perry Galloway, one of the six farmers “and when the judge said that, we were startled. Actually, ‘startled’ is an understatement.”
Since then, Arkansas Attorney General Leslie Rutledge has asked the state Supreme Court to stay Fox’s ruling.
Monsanto weighs in
On Friday morning (April 6), Monsanto again waded into the controversy, saying they’ll ensure the six farmers are provided with XtendiMax with Vaporgrip.
“We’d previously made a decision, as a company, that we’d not bring our XtendiMax with VaporGrip (to Arkansas) this year,” says Scott Partridge, Monsanto vice president of global strategies. “Well we’ve changed our minds with regard to these six growers and, frankly, any other growers able to obtain the type of relief these six obtained.
“So, we’re going to work with (the six farmers) and their retail partners to make XtendiMax available to them to apply to whatever acreage they wish to apply in-season after April 15.
“We recognize that Attorney General Rutledge is bringing this matter before the Arkansas Supreme Court. With all appropriate respect, we hope the justices will permit these growers to make applications in-season to demonstrate that Arkansas growers, just like all growers in other 33 (soybean-growing) states, are capable of making safe and effective applications of this modern technology, eliminate off-target movement and follow labels producing weed control and tremendous yields. We hope the justices will see fit to permit these (six) growers to make that demonstration on behalf of all growers in the state.”
Might Monsanto’s decision open anyone up to legal jeopardy?
“The way we read the court’s decision — and those retailers will have to listen to their own lawyers — the judge said the six growers can apply any dicamba product,” says Partridge. “Our analysis is we’re within our rights as a manufacturer of making our chemistry available. If there are retailers that have concerns about doing so, I’ll personally see that the chemistry is made available to the growers by us.”
Does that mean you’ll ship it to them from out of state?
“We have distribution centers throughout the United States. We’d put it on a truck and get it to the retailers just like we would through normal distribution. Or, if the retailers don’t want to be involved — and, frankly, I expect they’d want to participate — we’ll arrange to have it transported directly to the growers at their farms.”
Is Monsanto working with BASF (which makes Engenia, another new formulation of dicamba) regarding this? Or is this strictly Monsanto?
“This is just (Monsanto). BASF has their own product. They’re a competitor but I hope they’ll follow suit. If these growers choose to apply Engenia, that’s just fine.
“What’s important is there’s an opportunity here for these six growers to demonstrate that this technology can be used safely and effectively. They applied Engenia last year and had tremendous weed control and outstanding yields. They did it safely and effectively without creating any problems.
“That’s the reason these six stepped forward at tremendous personal expense, taking a lot of time to carry the load for all the growers of Arkansas. They’ve had that on their shoulders. They recognize the value and importance of the technology and that’s why we’re standing up to help them today.”
Scott Murphy, Monsanto spokesman, says, “If (the six farmers) want to use (XtendiMax), they’ll have access to it. It’s their choice about what they’d apply, how much they’d apply and when they’d apply based on needs on their farms. We just want them to have the assurance that if they can apply it, we’ll make sure it’s available.”
Partridge says Monsanto will also provide “them with nozzles. I suspect they all have them but, if not, we’ll provide them. We’ll change out the nozzles on their spray rigs if they want. … We’ll also offer our (spray) training package. We’ll provide them with a tutorial on our climate app to identify appropriate forecasted windows to apply.”
Galloway says he wants to be clear the six farmers “are completely independent of Monsanto. Yes, the offer is out there to make (XtendiMax) available. Prior to this action, (Monsanto) had chosen not to market XtendiMax in Arkansas.
“Regardless, beyond (making XtendiMax available) they’ve promised me nothing personally. We aren’t in cahoots at all — we’re just as independent as we’ve ever been.”
What are Galloway’s thoughts on spraying dicamba now? Is he more inclined to do so?
“Well, we’ll definitely be under more scrutiny. That’s kind of good because it’s an opportunity for us as farmers to work with the university (researchers). I believe the Arkansas Plant Board has approved more funds for studies on dicamba. I think (the situation with the six farmers) is an opportunity to save the state some money as well as for the scientists to work on-farm.”
“This has surely gotten a lot of interest,” says Grant Ballard, the attorney for the six farmers. “As the order stands right now, (my clients) have the option to use dicamba in-crop.”
As for the state’s requests for a stay, “we’re going to argue that’s not appropriate in this case. We’re taking it a step at a time. I think we have a good argument.”
Ballard says he has until April 10 to respond to the motion to stay.