ARKANSAS STATE PLANT BOARD; TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD; OTIS HOWE, IN HIS OFFICIAL CAPACITY AS CHAIR OF THE ARKANSAS STATE PLANT BOARD; AND MEMBERS OF THE ARKANSAS STATE PLANT BOARD APPELLANTS
NICKIE BELL; BRITT BLACKBURN; JUSTIN BLACKBURN; DOIN BOWERS, JR.; LISA BOWERS; JOEL BROWN; LANCE BRADLEY; TANAYA CARLTON; SCOTTY CATT; CHAD COSTNER; BRAD DAVAULT; DANNY ELLIS; DANNY ELLIS, JR.; DUSTIN ELLIS; CHAD FULLERTON; MARY GALLOWAY; ROBERT GAMMILL; SCOTT GEORGE; MARK GRAHAM; MIKE GRAHAM; ALLEN GRIFFIN; KIMBERLY HART; CHRIS LEIBLE; DUSTIN LITTLE; NATHAN LITTLE; ZACK MCMILLON; BRADLEY MCPHERSON; CHARLES MARTIN; KEITH MIKEL; SHANE MIKEL; ROGER REDDICK; TERRY ROBINSON; BENJAMIN C. SEXTON; CLYDE B. SEXTON, JR.; JOEY SELLMEYER; DOUGLAS THRELKELD; AND MARK WILLIAMS APPELLEES
FROM THE CLAY COUNTY CIRCUIT COURT [NO. 11PCV-2018-76]
HONORABLE RANDY F. PHILHOURS, JUDGE
Rutledge, Att'y Gen., by: Gary Sullivan, Ass't
Att'y Gen., for appellants.
Branch, Thompson, Warmath & Dale, P.A., by: Robert F.
Thompson and Kimberly B. Dale, for appellees.
K. WOOD, ASSOCIATE JUSTICE
Arkansas State Plant Board, Terry Walker, in his official
capacity as Director of the Arkansas State Plant Board, Otis
Howe, in his official capacity as Chair of the Arkansas State
Plant Board, and members of the Arkansas State Plant Board
(collectively, the "Plant Board") appeal the
circuit court's temporary restraining order that enjoined
the Plant Board from enforcing its agency rule limiting the
use of dicamba herbicides after April 16, 2018. Because the
Plant Board has since repealed and replaced this rule, we
dismiss the appeal as moot.
Arkansas State Plant Board approves and regulates which
herbicides Arkansas farmers may employ to combat invasive
plant species. In recent years, Arkansas soybean farmers have
experienced considerable difficulty in combatting the
invasive plant species commonly known as pigweed. To assist
soybean farmers in this struggle, beginning in 2017, the
Plant Board approved the in-crop application of improved,
low-volatility forms of dicamba-based herbicides.
the 2017 crop season, soybean farmers planted
dicamba-resistant soybeans and treated their crops with these
dicamba-based herbicides. Although it proved effective
against pigweed, the use of dicamba also resulted in numerous
complaints relating to off-target dicamba herbicide injury.
In response, the Plant Board appointed a dicamba task force
to address dicamba related complaints and propose new rules
for dicamba use in the 2018 crop year. Based on the task
force's recommendation, the Plant Board proposed a new
rule prohibiting the use of dicamba from April 16 through
October 31 of each year. Farmers opposing the April 15 cutoff
date suggested that the date should be extended to May 25,
which would allow Arkansas farmers to use dicamba while still
preventing off-target injury. Notwithstanding these
contentions, on January 19, 2018, the Arkansas Legislative
Council approved the rule prohibiting the use of dicamba in
Arkansas from April 16 through October 31. Ten days later,
the rule took effect.
Temporary Restraining Order
April 16, 2018, appellees-thirty-seven Arkansas farmers who
intended to use dicamba herbicides in 2018-filed a complaint
against the Plant Board for declaratory judgment and
injunctive relief. Contemporaneous with their complaint,
appellees filed a motion for temporary restraining order
asking the circuit court to enjoin the Plant Board from
enforcing its April 15 cutoff date. Specifically, the motion
asserted that an injunction was necessary because appellees
had already planted dicamba-resistant beans for the 2018
growing season, and without the use of dicamba herbicides
after April 15, 2018, appellees' soybean crops would be
damaged in a way that cannot be "unwound."
circuit court granted the ex parte TRO and enjoined the Plant
Board from enforcing its April 15 cutoff date. Importantly,
the court's order expressly stated that "[t]he basis
for the emergency nature of the motion stems from the
Arkansas State Plant Board placing an April 15, 2018, cutoff
date for the spraying of dicamba herbicides." On April
18, 2018, the Plant Board filed a motion to dissolve the
temporary restraining order. One day later, it filed a notice
of appeal to this court.
notice of appeal solely identified the circuit court's
April 16 TRO as the order being appealed. As an interlocutory
appeal, our jurisdiction is appropriate under Arkansas Rule
of Appellate Procedure -Civil 2(a)(6). We note that although
the Plant Board raises the additional issue of sovereign
immunity on appeal, the circuit court rendered no ruling on
that issue, or for that matter, any other aspect of the
underlying cause of action. Indeed, the issue of sovereign
immunity was not raised to the circuit court until the Plant
Board filed its motion to dismiss on April 18. Our review is
limited to the propriety of the April 16 TRO.
this court will not review issues that are moot.
E.g., Weaver v. City of W. Helena, 367 Ark.
159, 161, 238 S.W.3d 74, 76 (2006). A case becomes moot when
any judgment rendered would have no practical legal effect
upon a then existing legal controversy. Id. When a
challenged statute is amended or repealed so as to eliminate
the controversy between the parties while the appeal is
pending, the appeal is rendered moot. E.g.,
Kiesling v. Ark. Prof'l Bail Ass'n, 2017
Ark. 346, at 5, 532 S.W.3d 567, 569; Weiss v.
Chavers, 357 Ark. 607, 617, 184 S.W.3d 437, 443 (2004).
Likewise, these mootness principles ...