The Arkansas Supreme Court today delivered two opinions that said the old law governing appointments to the state Plant Board was unconstitutional because it allowed trade groups to pick nine of 18 seats.

The recent legislative session corrected that by passing Act 361 to give appointment power to all seats to the governor, with advice from trade groups in some cases and subject to Senate confirmation. The won’t take effect until 90 days after the close of the session.

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One suit was by a group of individuals challenging a rule on the use of dicamba to control pigweed. But the decision turned on the constitutionality of the board’s membership and the Supreme Court held it unconstitutional, with Justice Karen Baker dissenting. This decision reversed a lower court decision by Circuit Judge Tim Fox. Said the opinion by Justice Barbara Webb:

In a case where there is an unconstitutional delegation of legislative power to a private entity, there can only be one remedy––the removal of unconstitutionally appointed board members.

The case was sent back to the lower court with orders to remove the unconstitutionally appointed members. The law passed by the legislature to correct those appointments had intended to allow the current members to complete their terms.

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One suit was by Monsanto, maker of dicamba, challenging Plant Board rules on dicamba use as an infringement on commerce. It also challenged board selection. Again, the court decided the case on the question of board membership. In this case, Circuit Judge Chris Piazza had ruled some of the appointments unconstitutional and suggested an appointment scheme like that adopted by the legislature — gubernatorial appointments made with guidance from the specific interest groups. Legal observers note that this might not be good enough to pass muster with the latest Supreme Court ruling because it mentions a ruling in another state that said it was an unconstitutional delegation of legislative appointment power when a private industry has the “exclusive right to nominate board members.” That nomination power exists in several cases in the new law.

The Plant Board has continued to meet. Monday, the Plant Board voted to loosen rules on the use of dicamba this year. A subcommittee of the Legislative Council is scheduled to review that vote at 1:30 p.m. today. The Supreme Court ruling seems likely to complicate matters.

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The subcommittee got a quick rundown of the court ruling today. Legislative staff said further action would come on the remand to circuit court. Legislators had lots of questions about the new rules, particularly narrowing the buffer zone for use of dicamba near specialty crops, while preserving a one-mile buffer for the university research station. They also questioned extending the ability to apply dicamba on soybeans and cotton through June 30, from May 25. The Plant Board voted 9-5 on the new rule. Public comments ran 316-263 in favor of longer spraying.

A lawyer for a group of farmers that opposes the rule change said there hadn’t been clear notice of what was coming during the process and that the proposed rule was the result of a political compromise, not science, as the law requires. He also said the law didn’t allow for an emergency rule change as proposed in this case.

Perry Galloway, a Woodruff County farmer, said he spoke for the large number of farmers who favor the rule. He contended the rule is more tolerant than the federal rules would allow.

After comments, a motion to disapprove the rule change failed and the subcommittee adjourned without making a recommendation. The issue now moves to the full Legislative council Administrative Rules Committee, which was to convene immediately afterward. Sen. Jimmy Hickey argued that the law change and Supreme Court ruling on membership justified disapproving the rule. Other subcommittee  members objected that the rule didn’t violate legislative intent or the law as it currently stands.

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At the full committee meeting, a Plant Board lawyer said the current rule, which will stand if the proposed rule change isn’t approved, was also approved by a board held to be unconstitutionally appointed. But he said the proposed rule would be more likely to survive a challenge because it was approved by a majority of members who held constitutional appointments, not those picked by private groups.

The discussion was limited. Sen. Jimmy Hickey moved that the rule not be approved because it came from a board not composed as the legislature wishes it to be composed. He also said science wasn’t sufficiently considered as required by the administrative procedures act. Rep. Jim Dotson noted the language in the new law, however, allowed current members to serve out their terms. House voters on the committee declined to approve Hickey’s motion so it failed. With that, the proposed rule change was approved and will take effect.

Unless further legal action changes that.

UPDATE: Speaking of further legal action, a note from lawyer Richard Mays:

Property owners/farmers/beekeepers in east Arkansas challenging the new rule adopted by the Plant Board on the 3rd allowing, among other things, dicamba herbicides to be sprayed over soybeans and other crops as late as July 30. The previous cut-off date had been May 25, in order to avoid warmer temperatures which enable dicamba to volatilize more easily. The new rule also reduces the buffer zones around fields with crops that have not been genetically-engineered to have tolerance to dicamba.

 

Dicamba is creating an ecological disaster in east Arkansas, and should be banned. Trump’s EPA approved it in 2017, and the 9thCircuit Court of Appeals revoked the approval, only to have Trump’s EPA again approve it in late 2020, without any justification for doing so.

 

The Arkansas Supreme Court’s decision today regarding the make-up of the Plant Board  is going to confuse thing for a while, and probably make matters worse until the current EPA can do something about it.