Arkansas judge dismisses Monsanto lawsuit on dicamba ban
By ANDREW DeMILLO
Feb. 16, 2018
LITTLE ROCK, Ark. (AP) — Arkansas' ban on the use of a weed killer blamed by farmers in several states for crop damage will remain in place after a state judge dismissed a legal challenge by a maker of the herbicide.
Pulaski County Circuit Judge Chris Piazza dismissed the lawsuit by St. Louis-based Monsanto seeking to block the state Plant Board's decision to ban dicamba from April 16 through Oct. 31. Arkansas has the toughest restriction in place on dicamba, though several states have imposed other restrictions or requirements.
Arkansas enacted the ban after receiving nearly 1,000 complaints last year about the weed killer drifting onto fields and damaging crops not resistant to the herbicide. Arkansas is one of several states where farmers have complained about dicamba drifting. Monsanto was also challenging an earlier rule that specifically targeted its brand of dicamba. BASF and DuPont also make dicamba weed killers.
Piazza cited a state Supreme Court ruling last month that said the state Legislature can't waive Arkansas' immunity from lawsuits. That ruling has prompted lawyers and judges around to the state to say it amounts to a blanket protection for the state from a wide range of legal challenges.
"It's obvious that Arkansas is going to have to come up with a constitutional amendment to change this to make it where we can operate again as a court should," Piazza said. "I really think the (state Supreme Court case) prevents us from hearing this case at this moment."
Dicamba has been around for decades, but problems arose over the past couple of years as farmers began to use it to kill invasive weeds in soybean and cotton fields where specially engineered seeds had been planted to resist the herbicide. Because it can easily evaporate after being applied, the chemical sometimes settles on neighboring fields planted with seeds that are not resistant to dicamba.
Piazza issued his ruling after hearing hours of arguments from Monsanto and the state over the company's request for a preliminary injunction blocking the ban, as well as Arkansas' request to dismiss the lawsuit. Monsanto did not say whether it would appeal the ruling to the state Supreme Court.
"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," Scott Partridge, the company's vice president of global strategy, said in a statement. "We look forward to the day when Arkansas growers can benefit from the latest weed-control technology on the market."
Among other arguments, Monsanto claimed that the state did not consider the economic impact of the ban. The company also challenged the makeup of the 18-member board, arguing a state law that gives private groups such as the state Seed Growers Association power to appoint members violates Arkansas' constitution. Piazza said he wouldn't going to rule specifically on the request for a preliminary injunction in case his dismissal ruling is appealed and sent back to his court.
During the hearing, Monsanto's attorneys said the state couldn't claim immunity since the company wasn't seeking monetary damages. They argued the state's Claims Commission, which handles economic claims against the state, wasn't the right avenue for the challenge against Arkansas' ban.
Attorneys for the Plant Board argued the company hadn't proven the state acted illegally or unconstitutionally, so the state was immune from the lawsuit.
"They just don't like the decision the Plant Board made," Assistant Attorney General Gary Sullivan said during the hearing.
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