Filed in 2017, the lawsuit brought by Monsanto against the Arkansas Plant Board has been dismissed in full by a circuit court judge in Little Rock.

The reason: in January, the Arkansas Supreme Court issued a decision that no one can sue the state under its constitution and the state can never be a defendant in its own courts. Because of that decision, there have been several Pulaski County judges who have already dismissed cases against the state. The suit brought by Monsanto — the company responsible for the dicamba-tolerant Xtend technology in soybean and cotton seed — argued against, among other things, a Plant Board ban on spraying dicamba in old or new formulations after April 15.

Monsanto must now decide whether to appeal.

In response to the court action, Scott Partridge, Monsanto vice president of Global Strategy, said, “Across 33 states, soybean growers are seeing outstanding yield potential and excellent weed control with the combination of Roundup Ready 2 Xtend Soybeans and XtendiMax Herbicide with VaporGrip Technology. Unfortunately, the plant board has placed unreasonable restrictions on the use of this technology in Arkansas. We are disappointed in the court’s decision to dismiss our legal challenge of the plant board’s restrictions, and we will consider additional legal steps that might be appropriate. We look forward to the day when Arkansas growers can benefit from the latest weed-control technology on the market.

“We have also developed a specific set of custom recommendations and incentives that will enable Arkansas growers to benefit from the yield potential of Roundup Ready 2 Xtend Soybeans this year — even without the use of XtendiMax. We invite our customers in Arkansas to visit roundupreadyxtend.com or contact their local dealer for more information.”

Another link to check: https://www.businesswire.com/news/home/20180227005939/en/Monsanto-Launches-App-Growers-Applicators-Successfully-Apply

Further grievances

Several weeks after the case dismissal, Partridge says misconceptions about the Xtend technology still abound.  “There are suggestions that the formulations of dicamba out are all volatile, period, and the manufacturers will plow forward without any changes to formulations. There’s a huge difference between XtendiMax with VaporGrip and the old formulations like Clarity and Banvel.”

Monsanto has been taken to task for claiming applicator error, not the new formulations’ inclination to roam off-target, is a serious problem in many of the drift complaints of 2017. Partridge pushes back. “In our instance, it’s data-driven. Of all the inquiries we’ve walked, the data shows over 91 percent of the instances were a function of applicators not following the label. That information came from the applicators and was self-reported.”

The company is doing applicator training sessions in 27 states. “The first I attended in Minnesota and there were over 140 folks in the room. We opened the doors and made the training sessions open to the public, including the media. We did so, frankly, because of some of the hysteria around dicamba in the popular media.”

Partridge wondered if the sessions would be “rough.” His fears have proven misplaced. “I’m stunned — of all the training sessions we’ve gone to, now over 100 and have 450 scheduled — that we’ve trained over 16,000 individuals. There hasn’t been a single incident of people standing up saying, ‘I don’t want this technology. It causes problems and can’t be handled. It’s too volatile.’ It’s just the opposite. Growers are talking about their experiences, about how they need to learn about applying the product, some admit they didn’t know how important buffers were.”

As for concerns about stellar germplasm harboring dicamba-tolerant traits — even in Arkansas with the mid-April spraying cutoff — Partridge is bewildered by worries. “We put this in our top germplasm. That was part of the commitment to growers — not only give them the top technology but to put it into the hottest (varieties). We wanted to put our best engine in the best-looking Ferrari. This is the highest-yielding stuff we have and we’re hearing that from growers.”

But will growers be tempted to spray their soybeans with dicamba even in prohibited situations?

The Arkansas State Plant Board “has created a unique environment that’s problematic. (Arkansas) is the only state out of 34 (soybean-growing states) where they’ve banned the in-crop use of this technology. There will be a bunch of cotton and soybean plants out there that are dicamba-tolerant.

“All you have to do is look at 2017 and BASF’s sales numbers. BASF sold only enough of their low-volatility formulation (Engenia) to cover about 52 percent of the dicamba-tolerant planted acres. That doesn’t mean Banvel and Clarity was applied on 48 percent. But it would be fascinating to … find out the sales and distribution numbers of the old dicamba formulations in 2017 compared to 2014, 2015 and 2016. We know the planted acreage in Arkansas has changed only 1 to 2 percent over those years.

“Why were there over 1,000 instances of off-target movement in the state of Arkansas last year? Other than our product being banned? Certainly, environmental conditions have something to do with it. I don’t think Arkansas farmers are bad farmers. I think just the opposite — they’re some of the most productive farmers in difficult circumstances and desperately need the most modern tools to control weeds in their fields. But the Plant Board has put them in a real pickle.”

Intervene

In an attempt to intervene in the Monsanto case, the farmers alleged damages saying they “include, but are not limited to, crop damage, yield loss, total failure of the crop, and financial ruin to impacted farmers.”

Further, “Because of Monsanto’s willful conduct, the Class Representative Farmers and Class members’ crops, which are not resistant to dicamba, have been devastated by dicamba damage due to the spraying of volatile, drift-prone dicamba over dicamba-tolerant products.

“Accordingly, they bring their lawsuit under state law claims of (1) strict products liability; (2) negligence; (3) breach of implied warranty of fitness for a particular purpose; (4) breach of implied warranty of merchantability (5) express warranty; (6) misrepresentation, fraud and deceit; (7) Arkansas Deceptive Trade Practices Act (8) unjust enrichment; and (9) civil conspiracy.”

The farmers are seeking “relief in the form of compensatory damages, punitive damages, and attorneys’ fees and other costs of litigation. Additionally, the Class Representative Farmers also seek declaratory and injunctive relief … to declare Monsanto’s actions as unlawful, and to further enjoin and prohibit the sale or use of Monsanto’s dicamba-tolerant crop system until such time that Monsanto can prove that dicamba-containing herbicides can be applied safely over the top of Xtend crops.”

The short version, says those interviewed for the story, is the farmers — from Jefferson, Monroe and St. Francis counties in east Arkansas — want to be sure they are involved in the Monsanto case to provide their unique point of view. Currently, there isn’t a private voice for farmers alleging damages and they’re now making use of a rule of civil procedure allowing a party to intervene if there’s something involved in the claims of a case that affects them.

Why didn’t the Arkansas attorney general’s office take up for the farmers?

The attorney general, by statute, represents the state of Arkansas. That means the attorney general only represents the Arkansas State Plant Board as the statute forbids the office representing the private interests of Arkansas citizens.

“Our farmer clients have suffered damages and they want to simply be sure if something is decided regarding dicamba that they have a voice,” says Scott Poynter, an attorney representing the farmers. “And they want separate representation that gives them that voice.”

The farmer group is now considering joining recently consolidated federal court actions in St. Louis.

Holding pattern

With the lawsuit against the Plant Board lawsuit dismissed, Monsanto is currently weighing its options. Like many others following the court action, Partridge is particularly unimpressed with the seeming inability to hold state government agencies legally accountable.

“I find it astounding that constitutional law doesn’t exist in the state of Arkansas. Apparently, the Plant Board isn’t subject to judicial review. The judge decided he’d follow earlier precedent from the state Supreme Court that state agencies are protected by sovereign immunity.

“As a reporter, you should be concerned that a state agency decides not to comply with sunshine laws. They decide that they don’t have to respond to a FOIA request from Delta Farm Press. ‘Go ahead and sue us. You can’t because we’re immune from judicial review.’

“Is that really where the state of constitutional law is in Arkansas? That there’s no due process, no equal protection, no freedom of the press?

“We’re looking at what to do. I think legal scholars will descend on the state of Arkansas and wouldn’t be surprised to see folks like the ACLU show up. (Those laws) will be changed.”