Arkansas Supreme CourtThe Arkansas Supreme Court today preserved part of a Monsanto Company challenge of state Plant Board rules on use of the herbicide dicamba.

Monsanto had sued to contend state rules on use of its brand of dicamba herbicide. Judge Chris Piazza dismissed the suit, saying the state could not be sued under new Supreme Court precedent on sovereign immunity.

Today, the court said parties still may sue the state over illegal (“ultra vires”) actions and seek injunctive relief.  It reinstated part of Monsanto’s lawsuit.

In this case, it said Monsanto’s challenges to “a requirement that pesticide registrants submit research conducted by researchers at the University of Arkansas in order to gain approval for use of the products, and to the constitutionality of the Plant Board’s composition and the current statutory process therefore, still reflect a ripe and justiciable case or controversy.” It said its sweeping ruling on sovereign immunity did not negate the “ultra vires” exception.

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Justice Karen Baker dissented in part. She referred to the Andrews case involving a University of Arkansas employee pay complaint in which the court enunciated the new precedent that the state cannot be sued. “Never means never,” the Andrews case said. Wrote Baker:

Andrews held that the State may never be made a defendant in any of her own courts. Accordingly, despite the majority’s attempt to narrow Andrews, . . .  State conduct is at issue, and Andrews bars suit.

 

Here, like Hurd, the majority attempts to limit Andrews.  Yet, until Andrews is overruled, suit against the State is barred, and the majority cannot pick and choose when an exception or exemption may apply.

The Supreme Court sent the case back to Piazza for consideration of the points it said remained open to challenge.