Suit seeks halt to latest dicamba rule

A group of 14 farmers, environmentalists and other landowners has asked a judge to put a halt to the state Plant Board’s new rule on farmers’ use of dicamba.

In a 44-page brief filed Thursday afternoon in Pulaski County Circuit Court, Richard Mays, a Little Rock attorney, asked for a permanent injunction against the rule, which took effect today.

The rule, adopted Monday by the Plant Board after a public hearing held online, includes a June 30 cutoff on using the herbicide on dicamba-tolerant soybeans and cotton.

A few hours before Mays filed the brief, the Arkansas Supreme Court ordered the removal of nine members of the Plant Board. The court said the part of state law allowing the nine appointments by private trade groups was unconstitutional. Seven members are appointed — legally — by the governor, the court said.

“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 said.

The court ordered Pulaski County Circuit Judge Tim Fox, who’d presided over one of two lawsuits questioning the legality of the board’s membership, to prepare the legal work for the nine members’ removal.

Mays cited the Supreme Court ruling as the 10th, and last, count in his brief as reason for a judge to halt the new dicamba regulations. “The 2021

Dicamba Rule should be declared null and void because it was adopted by vote of members who were not entitled to be on the Board and whose votes were illegal and unauthorized,” Mays wrote.

But Mays’ brief defends the Plant Board’s May 25 dicamba cutoffs for the 2019 and 2020 crop seasons. The filing also indicates support for the

board’s vote in December to reject a June 15 cutoff and, by inference, to retain the May 25 cutoff.

Except for a couple of members, the board’s composition from when it adopted May 25 cutoffs for 2019 and 2020 is largely the same today.

The new dicamba rule also is invalid because of flaws in how the board put the matter out for 30-day public comment and to the public hearing, Mays said.

The board’s adoption of the new rule itself also failed to comply with state law requiring a new rule be based on the “best reasonably obtainable scientific, technical, economic, or other evidence and information,” Mays wrote. All the violations claimed by Mays concerned compliance with the Arkansas Administrative Procedure Act, which governs how state boards and commissions can adopt, amend or repeal rules and regulations.

Mays had expressed the same concerns in letters and other documents sent to the Plant Board and state Department of Agriculture in the days leading up to the public hearing.

Lawmakers on two subcommittees of the Arkansas Legislative Council, which conducts the General Assembly’s business when it is not in session, on Thursday allowed the new dicamba regulation to go forward as both an emergency and permanent rule.

Wade Hodge, the in-house attorney for the Agriculture Department, told legislators that he and the state attorney general’s office believe the board had complied with the Administrative Procedure Act.

In an apparent attempt to parse votes between the seven Plant Board members appointed by the governor and the nine members selected by industry, Hodge also said the new rule is more legally defensible than previous ones. Neither group has voted as a bloc on Plant Board issues.

“If you have hesitancy about the proposed rule then you would have to have hesitancy about the current rule because it was adopted by the same board,” Hodge told lawmakers.

“I will also say the current rule in effect [with a May 25 cutoff] was passed by a majority of members who are in the positions that the Supreme Court ruled were unconstitutionally appointed,” he continued. “The rule before you today [the June 30 cutoff] was passed by a majority of members that are constitutionally appointed. So, if there is a challenge to either one of these rules, the rule we have in front of you today is more likely to survive a challenge.”

Senate President Pro Tempore Jimmy Hickey Jr., R-Texarkana, responded, “I don’t know I exactly agree with that.”

Mays’ case is Hooks v. Arkansas State Plant Board (60CV-21-2843). It was assigned to Circuit Judge Morgan “Chip” Welch.