ARKANSAS STATE PLANT BOARD and Terry Walker, in His Official Capacity as Director of the Arkansas State Plant Board, Appellants/Cross-Appellees
v.
Michael MCCARTY, Perry Galloway, Matt Smith, Greg Hart, Ross Bell, and Becton Bell, Appellees/Cross-Appellants
Page 474
APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-17-6539],
HONORABLE TIMOTHY D. FOX, JUDGE
Leslie
Rutledge, Atty Gen., by: Jennifer L. Merritt, Sr. Asst
Atty Gen., for appellants/cross-appellees.
Ark Ag
Law, PLLC, by: J. Grant Ballard, Little Rock; and Davidson
Law Firm, Little Rock, by: David L. Gershner, for
appellees/cross-appellants.
Dover
Dixon Horne PLLC, Little Rock, by: Monte D. Estes and Michael
G. Smith, for amicus curiae, Ozark Mountain Poultry, Inc.,
and 147 Arkansas Farmers.
OPINION
COURTNEY
HUDSON GOODSON, Associate Justice
Appellants/cross 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 Courts April 3, 2018 order declaring that the
Boards 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 orders dismissing with prejudice
their first amended complaint on the basis of the Boards
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.
I.
Background
The
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.
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 forces recommendations, the Board
proposed a new rule that would prohibit the use of dicamba
from April 16 through October 31 of each year.
Page 475
The
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.
On
November 9, 2017, the Board voted to ban the in-crop use of
dicamba-based herbicides after April 15, 2018.[1] 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 Boards refusal to initiate rule-making as
requested in their petition and the Boards 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 trial court.
On
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)." SeeBd. 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 Boards 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 ...