Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 1 of 42
`
`(Post. 11/19/19)
`
`CIVIL DRAW SHEET
`
`Date Filed: May 25, 2021
`
`Docket Clerk: BD - - - - - - - - - -
`
`Case Number: 3:21-cv-104
`- - - - - - - - - - -
`
`District Judge: Kristine G. Baker
`
`Magistrate Judge: ~Jo=e~J~·-V~o=lp"'"'e=--------
`
`Case Style: Coy's Honey Farm, Inc. v. Bayer Corporation, et al
`
`Division: Northern ~~~~ - - - - - - - - -
`
`District Judge drawn from Assignment Deck
`
`[Z] Civil
`D Discrimination and Title VII
`D Social Security
`Prisoner
`D Bankruptcy
`D Pine Bluff Death Penalty
`D Miscellaneous Case Matters
`
`Magistrate Judge drawn from Assignment Deck
`
`[Z] Magistrate Case Matters
`D Magistrate Social Security Referral
`D Magistrate Prisoner 1983 & 550
`D Magistrate Prisoner Habeas
`
`Summons Issued: [Z]Yes 0No
`
`If yes, Names of Defendants: _a_ll _____________________ _
`
`Notice of Right to Consent provided:
`
`[Z]Yes (cid:143) No
`
`(cid:143)
`

`

`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 2 of 42
`
`- Coul't ~ce: EASTER!f. DISTRICT Of. ARKA.'iSAS
`Division: 4
`Receipt 1-mober: LIT002243
`Cashie~ ID: bJdunl
`TTansactioniate: 05/iS/2021
`Payer Hate~ RlCHAA.l> -hAYS Lfflt FIR~
`---~----.----.... ----
`· CIVIL-FitI~ FEE~ HOH-PRISO:tER
`Fon RICAAltD r&YS LA!¾ FIRH
`.
`Caw/Party: HSE-l-21-CV-G03i04-001 .
`·• $4fMJG •
`.
`lbJii,nt:
`CREDIT.CMii--~----~~----
`------....... -..:--------,.~-~-
`lb~ Tendersd~ •492.ea
`_
`.
`... t~.00 '
`Total Duei
`Total Tendim!d: $402.00
`Change Aot:
`S0.00
`
`"Only then hank. ;l~an the· cheekf ·
`ooney order, · or veri f i.es. tl'ed it of
`ful\,ds is the foo m debt officially,·
`paid' oi' di.t.cha'i'~. A G53 fee aill
`be chnged fo"t. a returned check. 11
`
`

`

`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 3 of 42
`?:>',&l-0/ JQlf-,\<'tr,B
`CIVIL COVER SHEET
`JS44 (Rev.04/21)
`The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required'!Sy law, except as
`provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
`purpose of initiating the civil docket sheet.
`(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
`I. (a) PLAINTIFFS
`DEFENDANTS
`COY'S HONEY FARM, INC.
`BAYER CORPORATION, ET AL
`
`I
`
`(b) County of Residence of First Listed Plaintiff CRAIGHEAD
`(EXCEPT IN U.S. PLAINTIFF CASES)
`;
`
`County of Residence of First Listed Defendant ~E~L~K~H~A~R~T---~--(cid:173)
`(/N U.S. PLAINTIFF CASES ONLY)
`IN LAND CONDEMNATION CASES, USE THE LOCATION OF
`THE TRACT OF LAND INVOLVED.
`.
`
`NOTE:
`
`( C) Attorneys (Firm Name, Address, and Telephone Number)
`Richard H. Mays, Richard Mays Law Firm PLLC, 2226
`Cottondale LN#100, Little Rock,AR72202(501-891-6116)
`
`Attorneys (If Known)
`
`II. BASIS OF JURISDICTION (Place an "X" in One Box On(v)
`
`01 U.S. Government
`Plaintiff
`
`03 Federal Question
`(U.S. Government Not a Party)
`
`02 U.S. Government
`Defendant
`
`04 Diversity
`(Indicate Citizenship of Parties in Item Ill)
`
`III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
`and One Box for Defendant)
`(For Diversity Cases Only)
`PTF
`PTF
`Incorporated or Principal Place O 4
`[R] I
`of Business In This State
`Incorporated and Principal Place D 5
`of Business In Another State
`
`Citizen of This State
`
`DEF
`
`(cid:143)
`
`Citizen of Another State
`
`0
`
`2
`
`0
`
`2
`
`Citizen or Subject of a
`Foreign Country
`
`0
`
`3
`
`0
`
`3 Foreign Nation
`
`DEF
`04
`
`[R]5
`
`FORFEITURE/PENAL TY
`625 Drug Related Seizure
`of Property 21 USC 881
`690 Other
`
`~ 110 Insurance
`
`120 Marine
`130 Miller Act
`140 Negotiable Instrument
`0 150 Recovery of Overpayment
`& Enforcement of Judgment
`
`8 151 Medicare Act
`
`152 Recovery of Defaulted
`Student Loans
`(Excludes Veterans)
`0 153 Recovery of Overpayment
`of Veteran's Benefits
`0 160 Stockholders' Suits
`0 190 Other Contract
`
`8 195 Contract Product Liability
`
`196 Franchise
`
`§ 230 Rent Lease & Ejectment
`
`240 Torts to Land
`245 Tort Product Liability
`0 290 All Other Real Property
`
`IV. NATURE OF SUIT (Place an "X" in One Box Only)
`CONTRACT
`TORTS
`PERSONAL INJURY
`PERSONAL INJURY
`O 365 Personal Injury -.
`310 Airplane
`3 I 5 Airplane Product
`Product Liability
`O 367 Health Care/
`Liability
`320 Assault, Libel &
`Pharmaceutical
`Slander
`Personal Injury
`330 Federal Employers'
`Product Liability
`O 368 Asbestos Personal
`Liability
`340 Marine
`Injury Product
`345 Marine Product
`Liability
`350 Motor Vehicle 8 370 Other Fraud
`LABOR
`PERSONAL PROPERTY
`Liability
`710 Fair Labor Standards
`Act
`371 Truth in Lending
`355 Motor Vehicle
`Product Liability O 380 Other Personal
`720 Labor/Management
`Relations
`360 Other Personal
`Property Damage
`740 Railway Labor Act
`Injury
`0 385 Property Damage
`751 Family and Medical
`362 Personal Injury -
`Product Liability
`Leave Act
`Medical Malpractice
`1-,,.,,.,.,,..,.R_E_A,_,L,,.P_R-:O_P_E_.,R,..T_Y __ +--r-:--,,,C:--IV=-:-IL_RI,,,G,..,,,.H.,,T.,.s.,...._-+-_P-=R~IS.,.O_NE_R:--P_E_T_I_T_IO;;..N_S.;....~ 790 Other Labor Litigation
`Habeas Corpus:
`440 Other Civil Rights
`791 Employee Retirement
`210 Land Condemnation
`0 220 Foreclosure
`441 Voting
`463 Alien Detainee
`Income Security Act
`442 Employment
`510 Motions to Vacate
`443 Housing/
`Sentence
`Accommodations
`530 General
`445 Amer. w/Disabilitics -
`535 Death Penalty
`Other:
`Employment
`446 Amer. w/Disabilities -
`540 Mandamus & Other
`Other
`550 Civil Rights
`448 Education
`555 Prison Condition
`560 Civil Detainee -
`Conditions of
`Confinement
`
`L\1MIGRA TION
`462 Naturalization Application
`465 Other Immigration
`Actions
`
`8 422 Appeal 28 USC 158
`
`423 Withdrawal
`28 USC 157
`INTELLECTUAL
`PROPERTY RIGHTS
`
`(cid:143) 820 Copyrights
`8 830 Patent
`(cid:143)
`(cid:143) 880 Defend Trade Secrets
`
`835 Patent - Abbreviated
`New Drug Application
`840 Trademark
`
`Act of2016
`
`SOCIAL SECURITY
`861 HIA (1395ff)
`862 Black Lung (923)
`863 DIWC/DIWW (405(g))
`864 SSID Title XVI
`
`Click here for: Nature of Suit Code Descri tions.
`OTHER STATUTES
`BANKRUPTCY
`375 False Claims Act
`376 Qui Tam (31 USC
`3729(a))
`400 State Reapportionment
`410 Antitrust
`430 Banks and Banking
`450 Commerce
`460 Deportation
`4 70 Racketeer Influenced and
`Corrupt Organizations
`480 Consumer Credit
`(15 USC 1681 or 1692)
`485 Telephone Consumer
`Protection Act
`490 Cable/Sat TV
`850 Securities/Commodities/
`Exchange
`890 Other Statutory Actions
`891 Agricultural Acts
`893 Environmental Matters
`895 Freedom oflnformation
`Act
`896 Arbitration
`899 Administrative Procedure
`Act/Review or Appeal of
`Agency Decision
`950 Constitutionality of
`State Statutes
`
`(cid:143) 865 RSI (405(g))
`(cid:143) 870 Taxes (U.S. Plaintiff
`(cid:143) 871 IRS-Third Party
`
`FEDE LTAX UITS
`
`or Defendant)
`
`26 USC 7609
`
`V. ORIGIN (Place an "X" in One Box Only)
`0 I Original
`D 2 Removed from
`Proceeding
`State Court
`
`0 3 Remanded from
`Appellate Court
`
`D 4 Reinstated or
`Reopened
`
`D 8 Multidistrict
`Litigation -
`Direct File
`
`D 6 Multidistrict
`D 5 Transferred from
`Litigation -
`Another District
`(specify)
`Transfer
`Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
`VI. CAUSE OF ACTION 15 USC Sec.1125(a); Ark. Code Ann. Sec. 16-226-101, et seq.
`Brief description of cause:
`Damage to Property Due to Defective Product
`0
`
`VII. REQUESTED IN
`COMPLAINT:
`VIII. RELATED CASE(S)
`IF ANY
`
`CHECK IF THIS IS A CLASS ACTION
`UNDER RULE 23, F.R.Cv.P.
`
`DEMAND$
`$75,000+
`
`CHECK YES only if demanded in complaint:
`JURY DEMAND:
`0Yes 0No
`
`(See instructions):
`
`JUDGE
`
`RECEIPT#
`
`AMOUNT
`
`JUDGE
`
`MAG.JUDGE
`
`

`

`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 4 of 42
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF ARKANSAS
`NORTHERN DIVISION
`
`MAY t-5 2021
`i~~ES ~c~CK,,CLERK
`
`COY'S HONEY FARM, INC.
`
`PLAINTIFF
`
`DEPCLERK
`
`vs.
`
`No. 3 :;21-c.v- I n'-{-t<~8
`
`ThiscaisezssignedtoOistrictJud~e ~
`BAYER CORPORATION;
`,tVolfE..
`BAYER U.S., LLC;
`andioMagistrateJudg~
`_.'
`BAYER CROPSCIENCE (ARKANSAS) INC.;
`BASF CORPORATION; and
`BASF AGRICULTURAL SOLUTIONS SEED US LLC
`
`DEFENDANTS
`
`7
`
`COMPLAINT
`
`Comes the Plaintiff, Coy's Honey Farm, Inc., and for its cause of action
`
`against the Defendants, Bayer Corporation; Bayer U.S., LLC; Bayer Cropscience
`
`(Arkansas) Inc.; BASF Corporation; BASF SE; BASF Crop Protection, and BASF
`
`Agricultural Solutions Seed US LLC ( collectively "BASF"); and states:
`
`The Parties
`
`1.
`
`Plaintiff is a corporation organized and existing under the laws of the
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`State of Arkansas, with its principal office in Craighead County, Arkansas.
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`Plaintiff's principal business is the commercial keeping, reproduction and use of
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`honey bees, and the harvesting, marketing and sale of honey produced by those
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`bees.
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 5 of 42
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`2. Defendant, Bayer Corporation, is a foreign for-profit corporation
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`authorized to do business in the State of Arkansas, whose principal address is 1884
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`Miles Avenue, Elkhart, Indiana 46515-0040, and whose agent for service in. the
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`State of Arkansas is Corporation Service Company, 300 Spring Building- Suite
`
`900, 300 South Spring Street, Little Rock, Arkansas 72201.
`
`3. Defendant, Bayer U.S. LLC, is a Delaware foreign limited liability
`
`company authorized to do business in the State of Arkansas, whose principal
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`address is 100 Bayer Road, Pittsburgh, PA 15206, and whose agent for service in
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`the State of Arkansas is Corporation Service Company, 300 Spring Building(cid:173)
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`Suite 900, 300 South Spring Street, Little Rock, Arkansas 72201.
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`4. Defendant, Bayer Cropscience (Arkansas) Inc., is a New York for-profit
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`corporation authorized to do business in the State of Arkansas, whose address is 2
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`T.W. Alexander Drive, Durham, N.C. 27709, and whose agent for service in the
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`State of Arkansas is Corporation Service Company, 300 Spring Building- Suite
`
`900, 300 South Spring Street, Little Rock, Arkansas 72201.
`
`5. Defendant, BASF Corporation is a corporation organized and existing
`
`under the laws of the State of Delaware, with its principal place of business at 100
`
`Park Avenue, Florham Park, New Jersey, and whose agent for service in the State
`
`of Arkansas is CT Corporation System, 124 West Capitol A venue - Suite 1900,
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`Little Rock, Arkansas 72201.
`
`2
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 6 of 42
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`6. Defendant, BASF Agricultural Solutions Seed US LLC, is a limited
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`liability company organized and existing under the laws of the State of Delaware,
`
`with its principal place of business at 100 Park Avenue, Florham Park, New Jersey,
`
`and whose agent for service in the State of Arkansas is CT Corporation System,
`
`124 West Capitol A venue - Suite 1900, Little Rock, Arkansas 72201.
`
`JURISDICTION AND VENUE
`
`7. This Court has subject matter jurisdiction of this case pursuant to 28
`
`U.S.C. §§ 1331 and 1332, and supplemental jurisdiction pursuant to 28 U.S.C.
`
`§ 1367(a).
`
`8. Venue is proper in this District pursuant to 28 U.S.C. §1391(b)(2), in that
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`this is the judicial district in which a substantial part of the events or omissions
`
`giving rise to the Plaintiffs claim occurred, and a substantial part of the property
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`that is the subject of this litigation is situated.
`
`Nature of Case
`
`9. This is a case involving the effects of herbicides containing the chemical
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`Dicamba ("the Dicamba Herbicides" or simply "Dicamba") developed,
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`manufactured, marketed and sold by each of the Defendants in the State of
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`Arkansas and applied by spraying on row crops, such as soybeans, cotton and corn,
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`in thousands of acres throughout east Arkansas.
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`3
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 7 of 42
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`10. Dicarnba is a selective benzoic acid herbicide used to control a wide
`
`spectrum of broadleaf weeds. It has a broad application window and can be used as
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`a bum-down, pre- and post-emergence residual herbicide. Dicamba is rapidly
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`absorbed by plant leaves, stems, and roots, and works [ as an auxin agonist] by
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`mimicking naturally-occurring plant hormones (i.e., auxins) that regulate many
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`plant processes, such as protein synthesis and cell growth. Dicamba induces
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`rapid abnormal cell growth and development in the stems, petioles, and leaves of
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`sensitive plants, and also limits transpiration and photosynthesis, leading to irregular
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`cell growth, leaf drop, and starvation, resulting in plant death.
`
`11. Within the short span of five years, the United States and other major
`
`agricultural nations have seen a dramatic increase in the use of Dicamba Herbicides
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`as a means of controlling weeds, such as Palmer amaranth (Pigweed) in soybean,
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`com and cotton fields that have developed a tolerance for other herbicides. Giant
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`international chemical companies such as Monsanto ( acquired by Defendant Bayer
`
`in 2018) and BASF have developed seeds for soybean, com and cotton that are
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`genetically-modified to withstand Dicarnba, and those companies sell the seeds and
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`the Dicamba Herbicides to farmers as a "system."
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`12. While it may be a clever scheme, it is one that is extremely dangerous to
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`other parts of the environment. Besides being efficient at killing weeds, Dicamba
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`has other characteristics that make its use highly risky:
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`4
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 8 of 42
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`a.
`
`All of the Dicamba Herbicides that are sprayed over the
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`top of the genetically modified plants settle on the plants and soils that
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`are its target. Instead, portions of it "drift" (move with wind/breezes in
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`the air) to other fields and areas off the target site, resulting in damage
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`to or death of non-genetically-altered crops, domestic and wild plants,
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`bushes, and trees that are sensitive to and damaged or eradicated by
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`the Dicamba Herbicides that drift onto them.
`
`b.
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`The Dicamba Herbicides are also subjec~ to
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`"volatilization," which means it converts from the liquid phase in
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`which it is applied when sprayed on the genetically-modified plants to
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`a gaseous form.after the spraying. That conversion from liquid to gas
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`can occur hours to days after the Dicamba Herbicide is sprayed over
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`the plants. Furthermore, the amount of Dicamba Herbicide that
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`volatilizes increases with temperature; i.e., the higher the ambient air
`
`temperature, the greater the amount of volatilization of the Dicamba
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`Herbicides.
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`13. The areas that may be affected off the target fields by "drift" or
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`"volatilization" of the Herbicides ( also referred to as "chemical trespass") may be
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`substantial distances from the fields on which they were originally applied.
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`Further, because of such volatilization, it is difficult, if not impossible, to trace the
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`5
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 9 of 42
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`specific field that was the source of the original application of the Dicamba
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`Herbicide.
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`14. The herbicides manufactured and sold by the Defendants that contain
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`Dicamba that are currently used by many Arkansas farmers, are marketed under
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`various trade-names, including, without limitation, XtendMax® Herbicide with
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`VaporGrip® Technology ("XtendMax") (by Bayer), and Engenia® (by BASF).
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`15. Beginning in 201 7, the use of this dicamba system resulted in an
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`explosion of claims filed with the Arkansas Plant Board by crop growers who had
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`not converted to Monsanto or BASF's Dicamba Herbicide system, and from other
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`owners of property to where the Dicamba drifted or volatilized, causing death or
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`damage to fruit or nut trees, vegetable farms and gardens, ornamental plants and
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`natural vegetation. As the acreage on which Dicamba-tolerant crop seeds are
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`planted increases, the quantity of Dicamba Herbicide that is applied to those fields
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`increases each year, causing greater quantities and concentrations ofDicamba drift
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`and volatilization, and more widespread and extensive collateral damage. This also
`
`has the effect of driving farmers who have not used the Defendants' Dicamba(cid:173)
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`tolerant seeds and herbicides to switch to that "system" as a defense to protect
`
`against loss of non-dicamba tolerant crops.
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`16.
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`The magnitude of this problem in Arkansas alone becomes evident
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`when one considers that in 2020, there were approximately 2.8 million acres in the
`
`6
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 10 of 42
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`State planted in soybeans, 1.3 million acres in rice, and 300,000 acres of com.
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`(Ark. Farm Bureau). Monsanto claims that its Dicamba system was used on 1.5
`
`million acres of soybeans in Arkansas, most of which acreage is in east Arkansas.
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`Nationally, the U.S. EPA states that, in 2018, approximately 41 percent of the
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`nation's soybeans and 70 percent of the cotton acreage was planted with Dicamba(cid:173)
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`tolerant seed. These numbers will grow as farmers who have not used Dicamba
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`genetically-modified seeds and herbicides will begin to do so as a defensive
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`measure to avoid having their plants killed by drift or volatilization from their
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`neighbor's Dicamba fields.
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`1 7.
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`The inevitable result will be millions of acres of fields with
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`genetically-modified crops surrounded by a landscape of dead or damaged crops,
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`bushes and trees, devoid of flowering plants, with the resulting loss of birds, bees
`
`and other foraging animals and insects who need those plants for their sustenance.
`
`Coy's Honey Farm
`
`18. The Plaintiff, Coy's Honey Farm Inc. ("Coy's) was incorporated in the
`
`State of Arkansas in 1997. It is a small, closely-held corporation whose
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`shareholders consist of members of the Coy family. It was initially founded by
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`Bobby E. Coy, who commenced bee-keeping and honey-producing operations with
`
`approximately 20 hives in the Jonesboro, Arkansas, area, and who was
`
`7
`
`

`

`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 11 of 42
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`subsequently joined in the business by his wife, Anna Coy, and his two sons,
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`Richard D. Coy and David Coy. Bobby Coy is the President of Coy's; Anna Coy is
`
`the Secretary; and Richard and David Coy are Vice-Presidents of the company.
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`19. Through the years subsequent to its formation in 1997, Coy's Honey
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`Farm, Inc. has grown significantly. In 2017, the number of bee hives owned and
`
`operated by Coy's had grown to approximately 13,000. Each hive contains
`
`between 20,000 and 50,000 bees.
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`20. The hives containing the bees are frequently placed, with the permission
`
`of landowners and authority of the Arkansas State Plant Board, in areas between or
`
`near fields of crops, including soybeans, cotton and corn grown in eastern
`
`Arkansas. The bees are useful to the crops during the growing season through
`
`assisting in pollination of the crops. The bees also obtain pollen and nectar from
`
`those crop plants and other domestic plants and flowers grown in gardens and
`
`yards in the vicinities where the hives are placed, and from wildflowers. The bees
`
`transport the pollen and nectar from the crops and plants to their hives and produce
`
`honey in the hives on which they feed, and a portion of which Plaintiff harvests
`
`and sells as part of its business operations.
`
`21. In 2017 and 2018, Plaintiff had approximately 260 locations for its hives
`
`in various parts of Craighead, Crittenden, Cross, Mississippi, Poinsett, Clay,
`
`Jackson, Greene, Lee, Phillips, Woodruff, Monroe, St. Francis and White Counties
`
`8
`
`

`

`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 12 of 42
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`in Arkansas. Many of those locations were in undeveloped areas between fields in
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`which were and are grown com, soybeans and cotton, from which the bees would
`
`obtain nectar and pollen, as well as from natural and ornamental plants in the
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`undeveloped areas and nearby yards and gardens.
`
`22. Bees are critical to our environment and to our food supply. As they
`
`collect nectar for their hives, bees travel from plant to plant spreading pollen that
`
`collects on their legs and bodies. Aside from the many benefits of having bees in
`
`gardens, bees pollinate 85 percent of food crops intended for human consumption.
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`Further, bees are the only insect that produce a food (honey) consumed by humans.
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`Honey provides numerous vitamins, minerals and antioxidants to our diets. Most
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`notably, honey contains adequate levels of vitamins B 1, B3 and B6, as well as
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`minerals like calcium, iron, potassium and zinc. In addition to its use as a healthy
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`alternative to sugar in baked goods and cooking, honey has powerful antibacterial
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`properties. It kills bacteria and prevents infection in skin wounds, and has been
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`shown to relieve allergies due to trace amounts of pollen.
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`23. The honey produced by the Plaintiffs bees is generated from pollen and
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`nectar collected by the bees from wild and domestic flowers, blooms of crop
`
`plants, bushes, fruit trees, flowers, wild trees and other natural vegetation, and
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`taken by the bees to hives owned by the Plaintiff, where the bees produce the
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`honey.
`
`9
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`

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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 13 of 42
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`24. However, with the development of the new Dicamba Herbicides
`
`named above, the pollen and nectar sources for Plaintiffs bees has been greatly
`
`diminished as a result of the drift, volatilization and other spread of the Dicamba
`
`Herbicides from the fields and crops on which they were applied to the non-field
`
`areas on which the herbicides were not intended or allowed to be applied, thereby
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`damaging or eradicating the plants in those areas.
`
`25. As a result of the damage to or eradication of the plants from which the
`
`Plaintiffs bees acquired their nectar and pollen, and the resulting reduction in the
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`production of honey by the bees, Plaintiff has sustained loss of sales and income
`
`from the sale of honey. Plaintiff has also sustained the loss of bees through the
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`effects of the Dicamba Herbicides on the bees in the reduction in their food supply
`
`necessary to support their lives.
`
`26. In the Fall of 2016, Defendants received regulatory approval from the
`
`U.S. Environmental Protection Agency (U.S. EPA) to market the herbicides trade(cid:173)
`
`named XtendiMax (manufactured by Bayer and its predecessor, Monsanto),
`
`Engenia (manufactured by BASF), and FeXapan (manufactured by Corteva and its
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`predecessor, DuPont), subject to certain restrictions on the manner in which these
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`Dicamba-based herbicides could be used. Those restrictions were imposed because
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`of concerns about the well-known potential for the drift and volatilization of
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`Dicamba Herbicides when released over crops in the field, and were intended to
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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 14 of 42
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`prevent or minimize unintended spread through drift or volatilization of the
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`herbicides from the target areas to other fields and property in the area of
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`application. The EPA registration for Dicamba Herbicides was renewed in 2018.
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`27. In the process of obtaining regulatory approval for the herbicides, the
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`Defendants represented to the EPA that the potential of the herbicides to drift or
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`volatilize when applied in a target area was minimal. However, the Defendants
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`would not permit any testing of the herbicides for the characteristics of drift or
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`volatilization to be conducted by university agricultural departments or state
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`agencies. Such testing of new or proposed herbicides by university agricultural
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`experts prior to their introduction, is traditional and customary .
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`28. Before and after the registration of the Dicamba Herbicides by EPA in
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`the Fall of 2016, the Defendants also represented in its marketing of the herbicides
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`to farmers and other users of the herbicides, that the potential of the herbicides to
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`drift or volatilize when applied to a target area was minimal.
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`29. Defendants were warned by numerous weed scientists that the Dicamba
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`Herbicides would drift and volatilize. Those weed scientists include but were not
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`limited to Jason Norsworthy, Ph.D. of the University of Arkansas Department of
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`Agriculture, and Ford Baldwin, Ph.D., who was formerly the University of
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`Arkansas Extension Weed Scientist from 1974 to 2001 and is currently a
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`professional agricultural crop consultant. They have published and continue to
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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 15 of 42
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`publish results of their research and investigations into the effects of Dicamba
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`Herbicides on row crops and other plant life in Arkansas, and continue to be of the
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`opinion that the Dicamba Herbicides are extremely detrimental to non-Dicamba
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`tolerant soybeans, cotton and com and other vegetation, and that their ability to
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`drift and volatilize cannot be controlled.
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`30. Scientific opinions and reports of reputable weed scientists in academia
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`and professional consulting services, within and outside the State of Arkansas, are
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`virtually unanimous in their opinion that dicamba herbicides are extremely
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`qiffi_c~~t, if not impossible, for applicators to control, and that through drift,
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`volatilization and other migration off-target, they are causing and will continue to
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`cause widespread damage. A few of those scientists are:
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`Jason K. Norsworthy, Ph.D., a member of the University of
`Arkansas Agricultural Service, where he is a Distinguished Professor;
`and a fellow of the Weed Science Society of America (WSSA). Dr.
`Norsworthy is considered to be an expert on the subject of the
`characteristics of dicamba herbicides, and their effect, not only on
`crops but also "non-target" plants.
`
`Dr. Norsworthy concluded, among other things, that "secondary
`movement" is considered by academics across multiple states to be "a
`major concern with off-target movement of dicamba, and is not
`manageable by the applicator."
`
`Ford Baldwin, Ph.D. Dr. Baldwin was the University of Arkansas
`Extension Weed Scientist for 28 years, and a Fellow of the Weed
`Science Society of America since 1996. Since 2001 he has worked as
`a private agricultural consultant with Practical Weed Consultants,
`LLC.
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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 16 of 42
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`Dr. Baldwin's opinion regarding the use of dicamba is summarized as:
`"Dicamba has a chemistry problem that likely cannot be fixed, or at
`least no evidence has been provided that it can be successfully
`applied. . . . [I]gnoring the significant scientific data regarding the off
`target movement ~f dicamba will be the biggest environmental
`disaster agriculture has ever seen."
`
`Trey Koger, Ph.D. is a Research Agronomist with and owner of Delta
`Crop and Research, Inc. in Indianola, Mississippi, and also farms. In
`2018, he was commissioned by the Arkansas Plant Board to conduct
`an independent investigation regarding the impacts of dicamba
`herbicides on non-crop species in Arkansas.
`
`Dr. Koger's reports to the Plant Board contained statements such as:
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`Dicamba-like symptomology was prevalent in every city,
`town and community I visited . .... Significant injury was
`documents to the following tree species: cherry, white
`oak, sycamore, maple, cypress, Bradford pear. Injury was
`also documented on virtually eve.ry broad/ea/ vegetable
`species, including: tomato, squash, okra, cucumbers,
`watermelons, and cantaloupe . ... In summary, dicamba
`injury was prevalent to sensitive trees, roadside plants,
`and non-dicamba crops throughout many of the areas in
`eastern AR in which made [sic] evaluations.
`
`Dr. Kevin W. Bradley is a Professor of Plant Sciences at the
`University of Missouri, and holds a PhD in Plant Pathology,
`Physiology, and Weed Science from Virginia Tech University. He is
`also a Fellow in WSSA, and is highly-regarded in his profession.
`
`Dr. Bradley's views on the propensities of dicamba herbicides to be
`transmitted to off-target vegetation, and its effect on non-dicamba
`tolerant broadleafvegetation are very similar to thos~ of Dr.
`Norsworthy, Dr. Baldwin and the other scientists discussed herein.
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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 17 of 42
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`Dr. Thomas C. Mueller and Dr. Lawrence E. Steckel are both
`Professors of Plant Sciences at the University of Tennessee, and
`frequently collaborate on research and writing of articles regarding
`that research. They are likewise highly-regarded in their professions.
`·Much of their research has been on the subject of the characteristics of
`dicamba herbicides and its impact on off-target vegetation.
`
`Their views on the propensities of dicamba herbicides to be
`transmitted to off-target vegetation, and its effect on non-dicamba
`tolerant broadleafvegetation are very similar to those of Dr.
`Norsworthy, Dr. Baldwin, Dr. Bradley, and the other scientists
`mentioned herein.
`
`31. The Dicamba Herbicides were highly promoted by the Defendants for
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`use to commence with the 201 7 planting season, and were immediately in demand
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`with farmers who were having difficulties controlling weeds that had become
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`resistant to the older herbicides. As a result, since 2017, millions of pounds of
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`dicamba-containing herbicides have been applied annually to post-emergent
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`soybeans and cotton in east Arkansas. The result has been substantial damage to or
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`loss of non-Dicamba tolerant soybeans and other crops and native plant life in east
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`Arkansas.
`
`32. In June 2020, the United States Court of Appeals for the Ninth
`
`Circuit issued a decision in the case of National Family Farm Coalition et al v.
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`EPA, 960 F.3d 1120, 1144 (9th Cir. 2020), in which it determined that the U.S.
`
`EPA had violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
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`Case 3:21-cv-00104-KGB Document 1 Filed 05/25/21 Page 18 of 42
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`in issuing the Dicamba Herbicide registration for the Dicamba Herbicides to the
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`Defendants.
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`33. Among other holdings, the Ninth Circuit concluded that EPA violated
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`FIFRA by substantially underestimating several important risks and costs,
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`including the amount ofDicamba sprayed, the number of injury reports, and the
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`amount and costs of crop damage from spraying. That Court found that EPA
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`completely failed to consider and account for several other costs, such as economic
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`losses ensuing from anti-competitive effects of the registrations, as well as the
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`social costs of strife and dissension in farming communities triggered by rampant
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`off-target dicamba damage to neighbors' crops. Finally, it also held that EPA
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`violated FIFRA by predicating its conclusion that its approval would have no
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`adverse economic and environmental effects on label mitigation-in the form of
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`weather-related label use restrictions-that substantial record evidence
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`demonstrated were so extreme that farmers could not both follow them and have
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`any hope of controlling weeds. EPA failed to consider and analyze whether
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`following those directions was possible in real world farming conditions. 960 F .3d
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`at 1144.
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`34. In light of the substantial flaws in EPA's decision, the Ninth Circuit
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`vacated the registrations. Id. at 1145.
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`35. On May 24, 2021, the EPA's Office of Inspector General issued a report
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`of an investigation into EPA' s 2018 decision to extend registrations for three
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`dicamba pesticide products varied from typical operating procedures. The
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`Inspector General found the following defects in the registration process and
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`review: (i) the EPA did not conduct the required internal peer reviews of scientific
`
`documents created to support the dicamba decision; (ii) while division-level
`
`management review is part of the typical operating procedure, senior leaders in the
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`OCSPP's immediate office were more involved in the dicamba decision than in
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`other pesticide registration decisions, indicating political influence in the decision;
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`(iii) senior-level changes were made to or omissions from scientific documents,
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`including exclusion of some conclusions initially assessed by staff scientists to
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`address stakeholder risks; (iv) staff felt constrained or muted in sharing their
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`concerns on the dicamba registrations; and (v) the EPA's actions on the dicamba
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`registrations substantially understated some risks and failed to acknowledge others
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`entirely.
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`36. The Defendants again applied for new registrations on July 2, 2020, just
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`weeks after the Ninth Circuit's decision. EPA then approved those registrations on
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`October 27, 2020, just days before the presidential election. That registration is
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`being challenged