ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD APPELLANTS/CROSS-APPELLEES
MICHAEL MCCARTY, PERRY GALLOWAY, MATT SMITH, GREG HART, ROSS BELL, AND BECTON BELL APPELLEES/CROSS-APPELLANTS
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-17-6539]
HONORABLE TIMOTHY D. FOX, JUDGE
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Sr.
Ass't Att'y Gen., for appellants/cross-appellees.
Law, PLLC, by: J. Grant Ballard; and Davidson Law Firm, by:
David L. Gershner, for appellees/cross-appellants.
Dixon Horne PLLC, by: Monte D. Estes and Michael G. Smith,
for amicus curiae, Ozark Mountain Poultry, Inc., and 147
COURTNEY HUDSON GOODSON, Associate Justice.
appellees Arkansas State Plant Board and Terry Walker, in his
official capacity as the director of the Arkansas State Plant
Board (the Board), appeal the Pulaski County Circuit
Court's April 3, 2018 order declaring that the
Board's April 15, 2018, dicamba cutoff rule is "void
ab initio," and "null and void."
Appellees/cross appellants, who are farmers Michael McCarty,
Perry Galloway, Matt Smith, Greg Hart, Ross Bell, and Becton
Bell (the Farmers), appeal the same order's dismissing
with prejudice their first amended complaint on the basis of
the Board's sovereign immunity. We dismiss the direct
appeal as moot and dismiss as moot in part and reverse in
part on cross appeal, and remand for further proceedings.
Board approves and regulates herbicides that Arkansas farmers
may use to combat invasive plant species. Arkansas row crop
farmers struggle with competition from Palmer amaranth, which
is commonly known as pigweed. Over the years, pigweed has
developed a resistance to traditional herbicides.
Dicamba-based herbicides effectively control pigweed but may
only be used on plants grown from seed produced specifically
to resist dicamba.
is highly volatile, meaning that it has a tendency to
evaporate and fall off-target and damage other plants that
are not dicamba resistant. Dicamba was not approved for
in-crop application in 2016. In 2017, the Board approved the
use of what were believed to be less volatile formulations of
dicamba-based herbicides for in-crop application. However, in
2017, the Board began investigating an unprecedented number
of complaints of off-target dicamba herbicide injury. There
was some dispute as to whether the improved dicamba-based
herbicides were properly applied, or even if other
dicamba-based herbicides were used. The Board therefore
appointed a "Dicamba Task Force" to address the
increased number of complaints and to propose rules for the
use of dicamba by Arkansas farmers for the 2018 crop year.
Pursuant to the task force's recommendations, the Board
proposed a new rule that would prohibit the use of dicamba
from April 16 through October 31 of each year.
Farmers used dicamba-based herbicide in 2017 and wished to
use herbicide formulations containing dicamba in 2018. On
September 29, 2017, the Farmers filed a petition for
rulemaking. In their petition, the Farmers sought (1) the
implementation of a May 25 cutoff date for dicamba
application, (2) a requirement that there be a one-mile
buffer between a dicamba application and any growing crop
that is susceptible to dicamba injury, unless the applicator
receives a written waiver for the application, (3) the
creation of a special application permit for the growing
season use of dicamba in circumstances of severe pigweed
infestation; and (4) the instatement of a requirement that
any individual or entity applying dicamba after April 15 must
carry a mandatory liability insurance policy in the amount of
$500, 000. The Board denied the petition on October 19, 2017.
November 9, 2017, the Board voted to ban the in-crop use of
dicamba-based herbicides after April 15, 2018. On November 10,
2017, the Farmers filed suit in the Pulaski County Circuit
Court seeking declaratory and injunctive relief and judicial
review of administrative acts. The Farmers subsequently filed
an amended complaint alleging that (1) Arkansas Code
Annotated § 2-16-206 is an unconstitutional delegation
of legislative appointment power to private industry, (2)
Board members violated Arkansas Code Annotated §
25-15-209(a) by having unannounced meetings and communicating
with third parties about the proposed dicamba ban, (3) the
Board's refusal to initiate rule-making as requested in
their petition and the Board's proposed April cutoff date
were arbitrary and capricious, and (4) third-party contacts
and procedural irregularities provided grounds for them to
conduct discovery and present additional evidence to the
January 19, 2018, the Arkansas Legislative Council approved
the rule prohibiting dicamba usage from April 16 through
October 31, and the new rule took effect ten days later. On
February 15, 2018, the Board filed a motion to dismiss the
Farmers' amended complaint, arguing that (1) the Farmers
lacked standing, (2) the Farmers' claims were not ripe,
(3) the Farmers failed to perfect service of process on the
Board, and (4) the Farmers' claims were barred by
sovereign immunity. Notably, the Board conceded that
Andrews did not "explicitly or implicitly
overrule the line of cases that allow lawsuits for injunctive
relief where a state official or agency is acting unlawfully,
unconstitutionally, or otherwise outside the scope of his/its
authority (ultra vires)." See Bd. of Trs. of Univ.
of Ark. v. Andrews, 2018 Ark. 12, 535 S.W.3d 616.
However, the Board argued that the Farmers' complaint
failed to allege sufficient facts to plead any unlawful or
unconstitutional violation. The circuit court granted the
Board's motion to dismiss on the basis of the asserted
sovereign immunity defense. The circuit court dismissed with
prejudice the Farmers' constitutional claims regarding
the selection and procedures of the Board. The circuit court
also determined that the Farmers alleged no facts with
respect to their administrative rulemaking appeal that would
establish an exception to sovereign immunity. The circuit
court then determined that the Board's sovereign immunity
resulted in a violation of the Farmers' due process
rights, because the Farmers lacked any way to challenge the
Board's actions. Therefore, on April 3, 2018, the circuit
court ruled that the Board's rule was "void ab
initio" and "null and void" as to the Farmers.
The Board filed a notice of appeal as to the finding that the
Board's rule was "void ab initio," and
"null and void." The Farmers filed a cross appeal
in which they appealed the circuit court's with prejudice
dismissal of their complaint and the dismissal with prejudice
of their allegations of constitutional
Standard of Review
reviewing a circuit court's decision on a motion to
dismiss, we treat the facts alleged in the complaint as true
and view them in the light most favorable to the plaintiff.
Hodges v. Lamora, 337 Ark. 470, 989 S.W.2d 530
(1999). Furthermore, we look only to the allegations in the
complaint and not to matters outside the complaint.
Id. However, we treat only the facts alleged ...