Cite as 2019 Ark. 182
SUPREME COURT OF ARKANSAS
No. CV-18-346
Opinion Delivered: June 6, 2019
ARKANSAS STATE PLANT BOARD
AND TERRY WALKER, IN HIS
APPEAL FROM THE PHILLIPS
OFFICIAL CAPACITY AS
COUNTY CIRCUIT COURT
DIRECTOR OF THE ARKANSAS
[NO. 54CV-18-101]
STATE PLANT BOARD
APPELLANTS
HONORABLE CHRISTOPHER W.
MORLEDGE, JUDGE
V.
HARRY STEPHENS, STEPHEN
APPEAL DISMISSED.
HIGGINBOTHOM, WEST
HIGGINBOTHOM, KIMBOROUGH
STEPHENS, HERSHELL
SCHWANTZ, JAMES RICKY
HELTON, DAVID R. GREGORY,
POINTER HALL, PHIL HALL,
VERNON JOE SMITH, JERRY D.
FLYNN, DONNIE DELINE, BOB
BILLINGSLY, KRISTA TAGGART,
LEVI CARLTON, BRIAN
ALUMBUGH, BOBBY BYRD,
TYLER MCCLENDON, LARRY
MCCLENDON, NEIL CULP, BLAKE
CULP, CHRIS CARNATHAN, JEFF
CARNATHAN, JOHN BRYANT,
MICHAEL TAYLOR, THOMAS
TURNER, TERRY TOLAR, JOHN
TOLAR, LYLE WHEELER, ALAN
HARGRAVES, BRIAN STONER,
EARNEST LARRY, BERNARD E.
CROWLEY, PACE HINDSLEY,
EUGENE HINDSLEY, JAMES V.
RICHMOND, JOHN V.
RICHMOND, HARRY G.
STEPHENS, JOHN KING, LENNIE
KYLE, GERE REEVES, ED
GREGORY, CLAY YOUNG,
CHARLES GALLOWAY, BARRY
JONES, KYLE CANNON, CHARLIE
BURRESS, TREY JACKSON,
LEONARD ROHRSCHEIB,
LEONARD ROHRSCHEIB, JR.,
KEATH GROVES, SHAWN
HARDESTY, GENE JOHNSON,
PAUL SELLERS, RAY DAWSON,
DANNY MAY, ROGER MAY,
KEITH FREELAND, SCOTT STEPP,
BILLY DON HINKLE, TIMOTHY
JONES, ALLEN LOVELESS, CALEB
HALL, MICHAEL YOUNG, LANCE
GRAY, KEITH WILKERSON,
ROGER WILKERSON, AND
DONNIE WILKERSON
APPELLEES
JOHN DAN KEMP, Chief Justice
Appellants Arkansas State Plant Board and Terry Walker, in his official capacity as
director of the Arkansas State Plant Board (collectively, the Plant Board), appeal the circuit
court’s temporary restraining order
1
that enjoined the Plant Board from enforcing its agency
rule limiting the use of dicamba herbicides after April 15, 2018. Because the Plant Board
has since repealed and replaced this rule, we dismiss the appeal as moot. See Ark. State Plant
Bd. v. Bell, 2019 Ark. 164.
I. Facts and Procedural Background
Arkansas soybean farmers have long battled Palmer amaranth, a species of pigweed
that is particularly competitive and aggressive. Palmer pigweed is one of the most difficult
1
See Ark. R. App. P.–Civ. 2(a)(6) (2018) (stating that an appeal may be taken from
an interlocutory order granting an injunction).
2
weeds to control because it has developed a resistance to multiple weed killers. Dicamba-
based herbicides have proven effective for the control of pigweed populations, but some
formulations of dicamba are known to be volatile and prone to drift, meaning that they
could cause damage to and affect the yields of off-target crops.
2
In 2016, the Environmental
Protection Agency registered new dicamba formulations approved for in-crop, over-the-
top use to control weeds on soybean plants that are genetically engineered to tolerate
dicamba. The new dicamba was developed and marketed as less volatile and less prone to
drift than the older versions of dicamba. In 2017, the Plant Board approved new dicamba
for in-crop use by Arkansas farmers for the 2017 crop year.
During the 2017 crop year, soybean farmers planted genetically modified dicamba-
resistant soybean seeds and treated their crops with the new dicamba. Throughout that
summer, the Plant Board received an unprecedented number of complaints alleging off-
target dicamba-herbicide injury. In response, Plant Board Director Walker and Secretary of
Agriculture Wes Ward convened and co-chaired a task force to address dicamba-related
complaints and propose new rules for dicamba use in the 2018 crop year. As recommended
by the task force, the Plant Board proposed a new rule prohibiting the use of dicamba from
April 16 through October 31. Farmers opposing the April 15 cutoff date suggested that the
2
Volatility “measures the tendency of a chemical to vaporize.” Robert L. Zimdahl,
Fundamentals of Weed Science 444 (3d ed. 2007). Herbicides can volatilize “several hours after
application and lift and move elsewhere to condense on plant or other surfaces.” Tom
Barber et al., Dicamba in Arkansas–Frequently Asked Questions (Univ. of Ark., Div. of Agric.,
Research & Extension), https://www.uaex.edu/publications/pdf/FSA-2181.pdf. Drift is
the “movement of spray particles and vapors off-target.” Thomas J. Monaco, Stephen C.
Weller, and Floyd M. Ashton, Weed Science Principles and Practices 156 (4th ed. 2002).
3
cutoff 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 approved the rule prohibiting the use of
dicamba from April 16 through October 31. The rule went into effect ten days later.
On April 13, 2018, appellees—a group of farmers who intended to use dicamba
herbicides in 2018—filed a complaint against the Plant Board for declaratory judgment and
injunctive relief. They sought to enjoin the Plant Board’s dicamba ban and to obtain a ruling
that the actions of the Plant Board were illegal. Appellees also filed a motion for temporary
restraining order or preliminary injunction asking the circuit court to enjoin the Plant Board
from enforcing the April 15 cutoff date. Specifically, appellees asserted that an injunction
was necessary because they had already planted dicamba-resistant beans for the 2018 growing
season; without the use of dicamba herbicides after April 15, they would have no means to
prevent the pigweed from overtaking their soybean crops; and once the damage to the crops
was done, they would suffer business and crop harms that could not be “unwound.”
On April 13, the circuit court granted the ex parte TRO and enjoined the Plant
Board from enforcing its rule. On April 16, the Plant Board filed a motion to dissolve the
TRO, but two days later, before the motion was resolved, the Plant Board filed a notice of
appeal of the TRO to this court. The Plant Board also filed a motion for stay of the circuit
court’s order pending the appeal, which this court granted on April 25, 2018.
II. Mootness
The TRO in this case was entered to enjoin the Plant Board from enforcing the
April 15, 2018 cutoff date for the 2018 crop year. While the appeal was pending, the Plant
4
Board promulgated a new rule that repealed the April 15 cutoff date.
3
The new rule was
filed with the Secretary of State’s office on February 27, 2019, and it became effective on
March 9, 2019. Under the new rule, in-crop dicamba application is allowed through May
25 of each year. Ark. Code R. 209.02.4-XIII(B)(1)–(2).
Generally, a case becomes moot when any judgment rendered would have no
practical legal effect on a then existing legal controversy. Kiesling v. Ark. Prof’l Bail Ass’n,
2017 Ark. 346, 532 S.W.3d 567. If the repeal of a challenged rule eliminates the controversy
between the parties, then the case is moot. See Warren Wholesale Co. v. McClane Co., 374
Ark. 171, 286 S.W.3d 709 (2008).
Here, the rule mandating the April 15 cutoff—the basis for the entry of the TRO—
is no longer in effect. Because judgment on this appeal would have no practical legal effect
on the TRO’s enforceability, we dismiss this interlocutory appeal as moot. See Bell, 2019
Ark. 164 (dismissing as moot the appeal of the TRO entered to enjoin enforcement of a
Plant Board rule prohibiting the use of dicamba after April 15, 2018, because the rule had
been repealed while the appeal was pending); Ark. Dep’t of Human Servs. v. Ledgerwood, 2019
Ark. 121, ___ S.W.3d ___ (holding that the adoption of a new rule rendered the TRO
against the emergency rule moot).
Appeal dismissed.
Leslie Rutledge, Att’y Gen., by: Jennifer L. Merritt, Senior Ass’t Att’y Gen., for
appellant.
3
This
court
may
take judicial
notice
of
rules
and
regulations
promulgated
by
administrative agencies. Warren Wholesale Co. v. McLane Co., 374 Ark. 171, 173, 286 S.W.3d
709, 710 (2008).
5
Stoner Law PLLC, by: Kyle Stoner, for appellees.
6
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.