APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-17-5964]
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Brett
D. Watson, Attorney at Law PLLC, by: Brett D. Watson; Bryan
Cave Leighton Paisner LLP, by: Elizabeth Blackwell; and
Thompson Coburn LLP, by: Ryan Russell Kemper, for appellant.
Leslie
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Senior
Ass't Att'y Gen., for appellees.
Josephine Linker Hart, Associate Justice.
Monsanto
Company ("Monsanto") appeals the decision of the
Pulaski County Circuit Court. The circuit court dismissed
Monsanto's amended complaint against the Arkansas State
Plant Board and its members (together, the "Plant
Board") on the basis of sovereign immunity. We find
portions of this matter to be moot, and as to the remainder,
we reverse and remand for further proceedings consistent with
this opinion.
I.
Background
Monsanto
develops and sells products containing dicamba, a chemical
compound effective against Palmer amaranth (pigweed), which
is a pest weed common in Arkansas and other states. In 2016,
Monsanto obtained federal and state regulatory approval for
the in-crop use of a low-volatility dicamba herbicide,
XtendiMax with VaporGrip Technology ("XtendiMax"),
in Arkansas. Shortly thereafter, at a special meeting on
November 21, 2016, the Plant Board passed a new regulation
that reclassified XtendiMax from a Class A Pesticide to a
Class H Pesticide and added date restrictions prohibiting the
use of XtendiMax between April 15 and September 15 (the
"2016 Promulgation"). Monsanto asserts that this
rule effectively prohibited any in-crop use of XtendiMax for
the 2017 growing season. Then, on November 9, 2017, the Plant
Board promulgated a rule that would prohibit any in-crop use
of dicamba herbicides in Arkansas between April 16 through
October 31 of the 2018 growing season (the "2017
Promulgation"). The Plant Board asserts that the basis
for these decisions was to prevent the devastation of the
crops, foliage, honey production, and ornamental landscaping
caused by dicamba-containing herbicides.
After
the 2017 Promulgation, Monsanto filed a complaint in the
Pulaski County Circuit Court against the Plant Board and its
members on October 20, 2017, and then amended its complaint
on November 17, 2017. The amended complaint set forth seven
alleged claims against the Plant Board: (1) violations of the
Arkansas Pesticide Use and Application Act and the Arkansas
Pesticide Control Act; (2) violations of the Arkansas
Administrative Procedure Act; (3) a declaratory judgment that
the Plant Board's November 9, 2017 promulgation was ultra
vires and invalid; (4) a federal due-process violation for
Plant Board member Terry Fuller's role in the
promulgation process, which Monsanto alleged was illegally
tainted by bias; (5) a separate federal due-process violation
for infringement upon Monsanto's vested property interest
in its state and federal registrations and classifications
for its products; (6) a Commerce Clause violation for the
Plant Board's unwritten requirement that pesticide
registrants engage researchers from the University of
Arkansas to complete two years of product testing before they
can obtain regulatory approval for use of their products
within the state; and (7) state and federal constitutional
violations for the statutory process by which the Plant Board
is comprised, which allows various "private interest
groups" to each appoint a member to the Plant Board.
Importantly,
each of Monsanto's claims sought injunctive or
declaratory relief for alleged illegal or unconstitutional
activity by the Plant Board and its members. Monsanto's
amended complaint did not seek an award of monetary damages
in any respect. Additionally, while each of the claims in
Monsanto's sixty-two-page amended complaint is distinct,
there is overlap between the asserted legal authority for
those claims and the corresponding requests for relief.
Generally speaking, Monsanto's amended complaint asked
the circuit court to do four things: (1) to declare the Plant
Board's 2016 Rule Promulgation illegal and enjoin its
enforcement, (2) to declare the Plant Board's 2017 Rule
Promulgation illegal and enjoin its enforcement, (3) to
prevent the Plant Board from requiring pesticide registrants
to submit research conducted by researchers at the University
of Arkansas in order to gain approval for use of the products
within the State of Arkansas, and (4) to hold the composition
of the Plant Board's members and the current statutory
process therefore unconstitutional.
On
December 20, 2017, the Plant Board filed a motion to dismiss,
arguing that Monsanto's complaint should be dismissed as
a matter of law based upon the State's sovereign
immunity. At the time, there were three acknowledged
exceptions to the sovereign immunity-doctrine: (1) when the
State is the moving party seeking specific relief, (2) when a
plaintiff seeks to enjoin a state official from acting
unlawfully, and (3) when an act of the legislature has
created a waiver of immunity. See, e.g.,
Mitchem v. Hobbs, 2014 Ark. 233, 3-4; Ark.
Dep't of Cmty. Corr. v. City of Pine Bluff, 2013
Ark. 36, at 4, 425 S.W.3d 731, 734; Bd. of Trs. of Univ.
of Ark. v. Burcham, 2014 Ark. 61, at 3-4. In its motion
to dismiss, the Plant Board argued that, contrary to the
decisions reached in the aforementioned cases, the language
contained in art. 5, § 20 of the Arkansas Constitution,
"[t]he State of Arkansas shall never be made defendant
in any of her courts," leaves no room for any exception
to the State's sovereign immunity. Therefore, the Plant
Board argued, allowing Monsanto's complaint to proceed in
state court would violate art. 5, § 20 of the Arkansas
Constitution.
Then,
on January 18, 2018, this court issued its decision in a
separate case, Board of Trustees of University
of Arkansas v. Andrews. 2018 Ark. 12, 535 S.W.3d 616. In
Andrews, the majority held that the third of the
three aforementioned sovereign immunity exceptions
(legislative waiver) violated art. 5 § 20 of the
Arkansas Constitution. The majority held:
[W]e conclude that the legislative waiver of sovereign
immunity … is repugnant to article 5, section 20 of
the Arkansas Constitution. In reaching this conclusion, we
interpret the constitutional provision, "The State of
Arkansas shall never be made a defendant in any of her
courts," precisely as it reads.
Andrews, 2018 Ark. 12, at 10, 535 S.W.3d at 622.
Back to
the case now at hand, on January 22, 2018, Monsanto filed its
response to the Plant Board's motion to dismiss. In its
response, Monsanto argued that the claims set forth in its
amended complaint alleged ultra vires conduct on the part of
the Plant Board, and that Andrews had left the ultra
vires exception to sovereign immunity intact. On February 9,
2018, the Plant Board filed its reply. The Plant Board's
reply acknowledged that sovereign immunity should not bar
actions to enjoin ultra vires government conduct, even after
Andrews, but argued instead that Monsanto's
amended complaint failed ...