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Arkansas State Plant Board and Terry Walker v. Stephens
Supreme Court of Arkansas
June 6, 2019
ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD APPELLANTS
HARRY STEPHENS, STEPHEN HIGGINBOTHOM, WEST HIGGINBOTHOM, KIMBOROUGH STEPHENS, HERSHELL SCHWANTZ, JAMES RICKY HELTON, DAVID R. GREGORY, POINTER HALL, PHIL HALL, VERNON JOE SMITH, JERRY D. FLYNN, DONNIE DELINE, BOB BILLINGSLY, KRISTA TAGGART, LEVI CARLTON, BRIAN ALUMBUGH, BOBBY BYRD, TYLER MCCLENDON, LARRY MCCLENDON, NEIL CULP, BLAKE CULP, CHRIS CARNATHAN, JEFF CARNATHAN, JOHN BRYANT, MICHAEL TAYLOR, THOMAS TURNER, TERRY TOLAR, JOHN TOLAR, LYLE WHEELER, ALAN HARGRAVES, BRIAN STONER, EARNEST LARRY, BERNARD E. CROWLEY, PACE HINDSLEY, EUGENE HINDSLEY, JAMES V. RICHMOND, JOHN V. RICHMOND, HARRY G. STEPHENS, JOHN KING, LENNIE KYLE, GERE REEVES, ED GREGORY, CLAY YOUNG, CHARLES GALLOWAY, BARRY JONES, KYLE CANNON, CHARLIE BURRESS, TREY JACKSON, LEONARD ROHRSCHEIB, LEONARD ROHRSCHEIB, JR., KEATH GROVES, SHAWN HARDESTY, GENE JOHNSON, PAUL SELLERS, RAY DAWSON, DANNY MAY, ROGER MAY, KEITH FREELAND, SCOTT STEPP, BILLY DON HINKLE, TIMOTHY JONES, ALLEN LOVELESS, CALEB HALL, MICHAEL YOUNG, LANCE GRAY, KEITH WILKERSON, ROGER WILKERSON, AND DONNIE WILKERSON APPELLEES
FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CV-18-101]
HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Senior
Ass't Att'y Gen., for appellant.
Stoner Law PLLC, by: Kyle Stoner, for
DAN KEMP, CHIEF JUSTICE
Arkansas State Plant Board and Terry Walker, in his official
capacity as director 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 15, 2018. Because the Plant
Board has since repealed and replaced this rule, we dismiss
the appeal as moot. See Ark. State Plant Bd. v.
Bell, 2019 Ark. 164.
Facts and Procedural Background
soybean farmers have long battled Palmer amaranth, a species
of pigweed that is particularly competitive and aggressive.
Palmer pigweed is one of the most difficult weeds to control
because it has developed a resistance to multiple weed
killers. Dicamba-based herbicides have proven effective for
the control of pigweed populations, but some formulations of
dicamba are known to be volatile and prone to drift, meaning
that they could cause damage to and affect the yields of
off-target crops. In 2016, the Environmental Protection
Agency registered new dicamba formulations approved for
in-crop, over-the-top use to control weeds on soybean plants
that are genetically engineered to tolerate dicamba. The new
dicamba was developed and marketed as less volatile and less
prone to drift than the older versions of dicamba. In 2017,
the Plant Board approved new dicamba for in-crop use by
Arkansas farmers for the 2017 crop year.
the 2017 crop year, soybean farmers planted genetically
modified dicamba-resistant soybean seeds and treated their
crops with the new dicamba. Throughout that summer, the Plant
Board received an unprecedented number of complaints alleging
off-target dicamba-herbicide injury. In response, Plant Board
Director Walker and Secretary of Agriculture Wes Ward
convened and co-chaired a task force to address
dicamba-related complaints and propose new rules for dicamba
use in the 2018 crop year. As recommended by the task force,
the Plant Board proposed a new rule prohibiting the use of
dicamba from April 16 through October 31. Farmers opposing
the April 15 cutoff date suggested that the cutoff 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 from April 16 through October
31. The rule went into effect ten days later.
April 13, 2018, appellees-a group of farmers who intended to
use dicamba herbicides in 2018-filed a complaint against the
Plant Board for declaratory judgment and injunctive relief.
They sought to enjoin the Plant Board's dicamba ban and
to obtain a ruling that the actions of the Plant Board were
illegal. Appellees also filed a motion for temporary
restraining order or preliminary injunction asking the
circuit court to enjoin the Plant Board from enforcing the
April 15 cutoff date. Specifically, appellees asserted that
an injunction was necessary because they had already planted
dicamba-resistant beans for the 2018 growing season; without
the use of dicamba herbicides after April 15, they would have
no means to prevent the pigweed from overtaking their soybean
crops; and once the damage to the crops was done, they would
suffer business and crop harms that could not be
April 13, the circuit court granted the ex parte TRO and
enjoined the Plant Board from enforcing its rule. On April
16, the Plant Board filed a motion to dissolve the TRO, but
two days later, before the motion was resolved, the Plant
Board filed a notice of appeal of the TRO to this court. The
Plant Board also filed a motion for stay of the circuit
court's order pending the appeal, which this court
granted on April 25, 2018.
in this case was entered to enjoin the Plant Board from
enforcing the April 15, 2018 cutoff date for the 2018 crop
year. While the appeal was pending, the Plant Board
promulgated a new rule that repealed the April 15 cutoff
date. The new rule was filed with the Secretary
of State's office on February 27, 2019, and it became
effective on March 9, 2019. Under the new rule, in-crop
dicamba application is allowed through May 25 of each year.
Ark. Code R. 209.02.4-XIII(B)(1)-(2).
a case becomes moot when any judgment rendered would have no
practical legal effect on a then existing legal controversy.
Kiesling v. Ark. Prof'l Bail Ass'n, 2017
Ark. 346, 532 S.W.3d 567. If the repeal of a challenged rule
eliminates the controversy between the parties, then the case
is moot. See Warren Wholesale Co. v. McClane Co.,
374 Ark. 171, 286 S.W.3d 709 (2008).
the rule mandating the April 15 cutoff-the basis for the
entry of the TRO- is no longer in effect. Because judgment on
this appeal would have no practical legal effect on the
TRO's enforceability, we dismiss this interlocutory
appeal as moot. See Bell, 2019 Ark. 164 (dismissing
as moot the appeal of the TRO entered to enjoin enforcement
of a Plant Board rule prohibiting the use of dicamba after
April 15, 2018, because the rule had been repealed while the
appeal was pending); Ark. Dep't of Human ...