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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, Atty Gen., by: Jennifer L. Merritt, Senior Asst
Atty Gen., for appellees.
OPINION
JOSEPHINE
LINKER HART, Associate Justice
Monsanto Company ("Monsanto") appeals the decision
of the Pulaski County Circuit Court. The circuit court
dismissed Monsantos 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.
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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 Boards November 9, 2017 promulgation was ultra
vires and invalid; (4) a federal due-process violation for
Plant Board member Terry Fullers role in the promulgation
process, which Monsanto alleged was illegally tainted by
bias; (5) a separate federal due-process violation for
infringement upon Monsantos vested property interest in its
state and federal registrations and classifications for its
products; (6) a Commerce Clause violation for the Plant
Boards 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 Monsantos claims sought injunctive or
declaratory relief for alleged illegal or unconstitutional
activity by the Plant Board and its members. Monsantos
amended complaint did not seek an award of monetary damages
in any respect. Additionally, while each of the claims in
Monsantos 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, Monsantos amended complaint asked the
circuit court to do four things: (1) to declare the Plant
Boards 2016 Rule Promulgation illegal and enjoin its
enforcement, (2) to declare the Plant Boards 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 Boards members and the current statutory
process therefore unconstitutional.
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On
December 20, 2017, the Plant Board filed a motion to dismiss,
arguing that Monsantos complaint should be dismissed as a
matter of law based upon the States 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, 2014 WL 2019278; Ark. Dept 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, 2014 WL 585981. 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 States sovereign immunity. Therefore, the Plant Board
argued, allowing Monsantos 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 Boards 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 Boards
reply acknowledged that sovereign immunity should not bar
actions to enjoin ultra vires government conduct, even after
Andrews, but argued instead that Monsantos amended
complaint ...