2022 Ark. 29
Ark.2022Background
- Bayer manufactures dicamba herbicide and developed a low-volatility formulation (XtendiMax with VaporGrip); dicamba is known to volatilize and damage off-target crops.
- The Arkansas State Plant Board adopted a 2021 Dicamba Rule extending the in-season application cutoff from May 25 to June 30 and reducing buffer zones from one mile to one-quarter mile.
- Appellees (farmers and related parties) sued the Plant Board on May 6, 2021, seeking declaratory and injunctive relief under the Arkansas APA challenging the 2021 rule as procedurally and substantively defective; a temporary restraining order was entered on May 24, 2021.
- Bayer moved to intervene (May 26, 2021), asserting statutory and reputational interests in defending its product, the federal label/registration, and the science it submitted during rulemaking. FarmVoice also moved to intervene in favor of dicamba use.
- The circuit court denied Bayer’s motion to intervene, citing Ark. Code Ann. § 25-15-212 and construing the case as confined to the administrative record. Bayer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ark. Code § 25-15-212 (adjudications review) barred intervention and confined the case to the agency record | Bayer: §25-15-212 applies to adjudications, not rulemaking; this challenge is to rulemaking under §25-15-207, so §25-15-212 does not apply | Appellees: §25-15-212 limits participation; Bayer lacks standing as it did not suffer injury from final agency action and participated in the proceedings | Court: Reversed — §25-15-212 is inapplicable to rulemaking challenge; circuit court erred in relying on it |
| Whether Bayer satisfied Rule 24(a)(2) for intervention as of right (interest, impairment, inadequate representation) | Bayer: Has protectable economic and reputational interests, presented evidence at rulemaking, and its interests could be impaired; Plant Board will not adequately represent Bayer | Appellees: Bayer has no injury from final agency action and participated in the rulemaking; its interests are not necessary to the litigation | Court: Reversed — Bayer has timely filing, a sufficient interest, potential impairment, and inadequate representation; intervention as of right granted |
| Timeliness of Bayer’s motion to intervene | Bayer: Filed 20 days after complaint; TRO was entered but no substantial progress or prejudice | Appellees: Implied delay or procedural limits | Court: Timely — proceedings had not progressed, no prejudice, and reason for delay acceptable |
| Whether permissive intervention should be considered | Bayer: alternatively sought permissive intervention under Rule 24(b) | Appellees: Opposed permissive intervention | Court: Not reached — unnecessary because intervention as of right was granted |
Key Cases Cited
- Ark. Plant Bd. v. McCarty, 576 S.W.3d 473 (Ark. 2019) (background on dicamba volatility and regulatory restrictions)
- Douglas Companies, Inc. v. Walther, 609 S.W.3d 397 (Ark. 2020) (statutory-interpretation review is de novo)
- Certain Underwriters at Lloyd’s, London v. Bass, 461 S.W.3d 317 (Ark. 2015) (standards for intervention under Rule 24)
- Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership, 614 S.W.3d 811 (Ark. 2021) (intervenor must satisfy Rule 24(a)(2) elements; if met, court cannot deny intervention)
- McLane Co. v. Davis, 33 S.W.3d 473 (Ark. 2000) (factors for assessing timeliness of intervention)
- Bushong v. Garman Co., 843 S.W.2d 807 (Ark. 1992) (appellate court may affirm correct result despite erroneous reasoning by lower court)