The Arkansas Supreme Court handed down two opinions that will impact the make-up of the Arkansas State Plant Board.
On Thursday, May 6, the state Supreme Court released its opinion on Michael McCarty, Perry Galloway, Matt Smith, Greg Hart, Ross Bell and Becton Bell vs. Arkansas State Plant Board and Terry Walker, declaring that the appointment process for the State Plant Board is unconstitutional.
According to Arkansas Code Annotated § 2-16-206(a), the Arkansas State Plant Board is composed of 18 members. These members consist of the head of the Department of Entomology for the Division of Agriculture of the University of Arkansas; the head of the Department of Plant Pathology for the Division of Agriculture of the University of Arkansas; a practical cotton grower active in the industry; a member representing Arkansas fertilizer and cotton oil mills; a practical rice grower active in the industry; a practical horticulturist active in the industry; a nurseryman; a practical seed grower; a pest control operator; a seed dealer, a feed manufacturer; a pesticide manufacturer; a member representing the Arkansas Agricultural Aviation Association; a member representing the Arkansas Forestry Association; two active farmers; a livestock industry representative; and a forage industry representative.
Of these members, seven members are appointed by the governor. These include the cotton grower, fertilizer and cotton oil mill representative, rice grower, two active farmers, livestock industry representative and forage industry representative. Various trade and industry groups select nine, or half, of the board members. The Arkansas State Horticultural Society selects the horticulturist, the Arkansas Green Industry Association selects the nurseryman, the Arkansas Seed Growers Association selects the seed grower, the Arkanas Pest Management Association selects the pest control operator, the Arkansas Seed Dealers Association selects the seed dealer, the Arkansas Feed Manufacturers Association selects the feed manufacturer, the Arkansas Crop Protection Association selects the pesticide manufacturer, the Arkansas Agricultural Aviation Association selects a representative, and the Arkansas Forestry Association selects a representative.
In this case, the plaintiffs challenged a dicamba cutoff rule imposed by the State Plant Board for April 15, 2018, and a circuit cutoff declared that the cutoff date was null and void for those plaintiffs. However, the Plant Board appealed the circuit court’s ruling. The circuit court ruled that the Plant Board’s appointment process was unconstitutional, and the plaintiffs appealed this finding.
The Arkansas Supreme Court, in an opinion penned by Justice Barbara Webb, declared that the appointment process was unconstitutional. Webb cited Leathers v. Gulf Rice Ark. Inc., stating that the court had to determine whether the state legislature was abdicating or transferring its legislative functions with this process. The appointment process, she wrote, allowed private industry members to “regulate the affairs of an unwilling minority.”
With this opinion rendered, the Supreme Court instructed the circuit court to remove the unconstitutionally appointed members of the Arkansas State Plant Board.
“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. Accordingly, we reverse and remand with specific instructions for the circuit court to remove the unconstitutionally appointed Board members,” the opinion reads.
The Arkansas Supreme Court also denied in a separate opinion, penned by Justice Courtney Rae Hudson, Monsanto’s claims that the Arkansas State Plant Board’s Regulation 7 was unconstitutional. This regulation requires pesticide companies to submit research conducted by scientists at the University of Arkansas to gain regulatory approval. However, it upheld the claim that the Plant Board’s appointment process was unconstitutional.