Cite as 2019 Ark. 164
SUPREME COURT OF ARKANSAS
No. CV-18-369
ARKANSAS STATE PLANT BOARD;
Opinion Delivered: May 23, 2019
TERRY WALKER, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE
APPEAL FROM THE CLAY
ARKANSAS STATE PLANT BOARD; OTIS
COUNTY CIRCUIT COURT
HOWE, IN HIS OFFICIAL CAPACITY AS
[NO. 11PCV-2018-76]
CHAIR OF THE ARKANSAS STATE
PLANT BOARD; AND MEMBERS OF THE
HONORABLE RANDY F. PHILHOURS,
ARKANSAS STATE PLANT BOARD
JUDGE
APPELLANTS
APPEAL DISMISSED.
V.
NICKIE BELL; BRITT BLACKBURN;
JUSTIN BLACKBURN; DOIN BOWERS,
JR.; LISA BOWERS; JOEL BROWN; LANCE
BRADLEY; TANAYA CARLTON; SCOTTY
CATT; CHAD COSTNER; BRAD
DAVAULT; DANNY ELLIS; DANNY ELLIS,
JR.; DUSTIN ELLIS; CHAD FULLERTON;
MARY GALLOWAY; ROBERT GAMMILL;
SCOTT GEORGE; MARK GRAHAM; MIKE
GRAHAM; ALLEN GRIFFIN; KIMBERLY
HART; CHRIS LEIBLE; DUSTIN LITTLE;
NATHAN LITTLE; ZACK MCMILLON;
BRADLEY MCPHERSON; CHARLES
MARTIN; KEITH MIKEL; SHANE MIKEL;
ROGER REDDICK; TERRY ROBINSON;
BENJAMIN C. SEXTON; CLYDE B.
SEXTON, JR.; JOEY SELLMEYER;
DOUGLAS THRELKELD; AND MARK
WILLIAMS
APPELLEES
RHONDA K. WOOD, Associate Justice
The Arkansas State Plant Board, Terry Walker, in his official capacity as Director of
the Arkansas State Plant Board, Otis Howe, in his official capacity as Chair of the Arkansas
State Plant Board, and members of the Arkansas State Plant Board (collectively, the “Plant
Board”) appeal the circuit court’s temporary restraining order that enjoined the Plant Board
from enforcing its agency rule limiting the use of dicamba herbicides after April 16, 2018.
Because the Plant Board has since repealed and replaced this rule, we dismiss the appeal as
moot.
I. Background
The Arkansas State Plant Board approves and regulates which herbicides Arkansas
farmers may employ to combat invasive plant species. In recent years, Arkansas soybean
farmers have experienced considerable difficulty in combatting the invasive plant species
commonly known as pigweed. To assist soybean farmers in this struggle, beginning in 2017,
the Plant Board approved the in-crop application of improved, low-volatility forms of
dicamba-based herbicides.
During the 2017 crop season, soybean farmers planted dicamba-resistant soybeans
and treated their crops with these dicamba-based herbicides. Although it proved effective
against pigweed, the use of dicamba also resulted in numerous complaints relating to off-
target dicamba herbicide injury. In response, the Plant Board appointed a dicamba task force
to address dicamba related complaints and propose new rules for dicamba use in the 2018
crop year. Based on the task force’s recommendation, the Plant Board proposed a new rule
prohibiting the use of dicamba from April 16 through October 31 of each year. Farmers
opposing the April 15 cutoff date suggested that the date should be extended to May 25,
which would allow Arkansas farmers to use dicamba while still preventing off-target injury.
Notwithstanding these contentions, on January 19, 2018, the Arkansas Legislative Council
2
approved the rule prohibiting the use of dicamba in Arkansas from April 16 through
October 31. Ten days later, the rule took effect.
II. Temporary Restraining Order
On April 16, 2018, appellees—thirty-seven Arkansas farmers who intended to use
dicamba herbicides in 2018—filed a complaint against the Plant Board for declaratory
judgment and injunctive relief. Contemporaneous with their complaint, appellees filed a
motion for temporary restraining order asking the circuit court to enjoin the Plant Board
from enforcing its April 15 cutoff date. Specifically, the motion asserted that an injunction
was necessary because appellees had already planted dicamba-resistant beans for the 2018
growing season, and without the use of dicamba herbicides after April 15, 2018, appellees’
soybean crops would be damaged in a way that cannot be “unwound.”
The circuit court granted the ex parte TRO and enjoined the Plant Board from
enforcing its April 15 cutoff date. Importantly, the court’s order expressly stated that “[t]he
basis for the emergency nature of the motion stems from the Arkansas State Plant Board
placing an April 15, 2018, cutoff date for the spraying of dicamba herbicides.” On April 18,
2018, the Plant Board filed a motion to dissolve the temporary restraining order. One day
later, it filed a notice of appeal to this court.
1
The notice of appeal solely identified the circuit court’s April 16 TRO as the order
being appealed. As an interlocutory appeal, our jurisdiction is appropriate under Arkansas
Rule of Appellate Procedure –Civil 2(a)(6). We note that although the Plant Board raises
1
The Plant Board also filed a motion for stay of the circuit court’s order pending the
appeal, which our court granted on April 30, 2018.
3
the additional issue of sovereign immunity on appeal, the circuit court rendered no ruling
on that issue, or for that matter, any other aspect of the underlying cause of action. Indeed,
the issue of sovereign immunity was not raised to the circuit court until the Plant Board
filed its motion to dismiss on April 18. Our review is limited to the propriety of the April
16 TRO.
III. Mootness
Generally, this court will not review issues that are moot. E.g., Weaver v. City of W.
Helena, 367 Ark. 159, 161, 238 S.W.3d 74, 76 (2006). A case becomes moot when any
judgment
rendered
would
have
no
practical
legal
effect
upon
a
then
existing
legal
controversy. Id. When a challenged statute is amended or repealed so as to eliminate the
controversy between the parties while the appeal is pending, the appeal is rendered moot.
E.g., Kiesling v. Ark. Prof’l Bail Ass’n, 2017 Ark. 346, at 5, 532 S.W.3d 567, 569; Weiss v.
Chavers, 357 Ark. 607, 617, 184 S.W.3d 437, 443 (2004). Likewise, these mootness
principles equally extend to agency regulations that are repealed while an appeal is pending.
Warren Wholesale Co. v. McLane Co., Inc., 374 Ark. 171, 173, 286 S.W.3d 709, 710 (2008).
During the pendency of this appeal, the Plant Board promulgated a new rule that
repealed the April 15 cutoff date. The new rule was filed with the Secretary of State’s office
on February 27, 2019, and took effect beginning March 9, 2019. Under the new rule, in-
crop dicamba application is extended until May 25 of each year.
2
Ark. Code R. 209.02.4-
XIII (B)(1)–(2). Although the new rule is not part of the record, “[t]his court has historically
2
https://www.agriculture.arkansas.gov/Websites/aad/files/Content/5942664/Ark
ansas_Regulation_on_Pesticide_Classification_(Acts_389___410)_Orange(Rev.4-
19)_Emergency_Rule.pdf.
4
and consistently taken judicial notice of rules and regulations promulgated by administrative
agencies.” Warren, supra. Thus, as a threshold matter, we must determine whether the instant
appeal is moot given the rule’s recent revision. E.g., Jefferson Cty. Election Comm’n v.
Hollingsworth, 2014 Ark. 431, at 5, 445 S.W.3d 504, 507.
Appellees founded their motion for TRO on the harm that their 2018 soybean crops
would experience as a result of the Plant Board’s April 15, 2018 cutoff date. And the circuit
court specifically stated that its basis for granting the TRO “stem[med] from the Arkansas
State Plant Board placing an April 15, 2018, cutoff date for the spraying of dicamba
herbicides.” Under the new rule, however, in-crop dicamba application may continue until
May 25 of each year. Ark. Code R. 209.02.4-XIII (B)(1)–(2). Thus, the basis for the
TRO—the April 15, 2018 cutoff date—is no longer in effect. Because judgment on this
appeal would have no practical legal effect upon the TRO’s enforceability, we dismiss this
interlocutory appeal as moot.
Appeal dismissed.
Leslie Rutledge, Att’y Gen., by: Gary Sullivan, Ass’t Att’y Gen., for appellants.
Branch, Thompson, Warmath & Dale, P.A., by: Robert F. Thompson and Kimberly B.
Dale, for appellees.
5
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.