Rose v. Arkansas State Plant Bd., 04-818.
| Decision Date | 22 September 2005 |
| Docket Number | No. 04-818.,04-818. |
| Citation | 213 S.W.3d 607 |
| Court | Arkansas Supreme Court |
| Parties | John ROSE; Stephen Rose; Tom Burnham; Oliver Coppedge; John Starnes; John McCord; Glenda Lee Coppedge; Billy Crosskno; Chris Crosskno; Judy Crosskno; Roy A. Gaines; R.D. Jackson; Kenny Jackson; Charles Richard Haynes; W.T. Moody; Greg Alexander; George A. Hale III; Margery Hale; Bill Griggs; John R. Taylor; Kent Gipson; Shannon Sanders; Jerry Lyn Sanders; Jerry D. Qualls; Leon Brothers; Ronnie Burks; Jerry Nall; Bob Nall; Wesley Davis; Joe Davis; John Nelson; Billy Joe Nelson; John Ed Regenold; Edward Regenold; Dixie Regenold; Dale Regenold; Leigh Regenold Clower; Harvey Faulkner; Harvey E. Faulkner; Ray Dixon; Snowden Hawkins; Clark Long Sr.; Sarah Long; Clark Long Jr.; Rebecca Long; Nathan Long; Amy Long; The Rose Co.; Coppedge Farms, LLC; GLC Farms, LLC; CC & L Farms, LLC; Starnes Farm & Seed, Inc.; Haynes Farm Partnership; Billy Crosskno & Sons Farms; L. & A. Brothers Family Limited Partnership; E.M. Regenold Estate; Individually and as Representatives of All Landowners and Cotton Producers in Mississippi County and Eastern Craighead County, Arkansas, Appellants, v. ARKANSAS STATE PLANT BOARD, Appellee; Lee Wilson & Company; Lowrance Gin & Supply Company, Inc.; Rabbit Ridge Gin & Warehouse, LLC; Shawnee Village Gin, LLC; and E. Ritter & Company, Intervenors. |
M. Jochums and Eric Walker, Ass't Att'ys Gen., Little Rock, for appellee.
Quattlebaum, Grooms, Tull & Burrow, PPLC, by: E.B. Chiles IV and Jennifer L. Wethington, Little Rock, for intervenors.
This case involves a challenge to the authority of the Arkansas State Plant Board to issue regulations requiring commercial cotton growers in certain designated zones of this state to participate in a program to suppress and eradicate the boll weevil and to share the costs of such a program, without having first received approval by referendum. Appellants are commercial growers of cotton in the Northeast Delta Zone (NEDZ), which is situated in Mississippi County and the eastern part of Craighead County. Appellee is the Arkansas State Plant Board. Intervenors are also commercial cotton growers from the NEDZ, but they favor the Board's action. Appellants filed suit in the Pulaski County Circuit Court arguing that the Board's regulation was not authorized under the Arkansas Boll Weevil Suppression Eradication Act (the Boll Weevil Act), Ark.Code Ann. §§ 2-16-601 to-617 (Repl.1996 and Supp.2005). Alternatively, Appellants asserted that provisions of the Act were unconstitutional. The trial court entered judgment in favor of the Board and Intervenors, and this appeal followed. Our jurisdiction of this case is pursuant to Ark. Sup.Ct. R. 1-2(b)(6). We find no error and affirm.
The General Assembly passed the Boll Weevil Act in 1991 after determining that "the boll weevil is a public nuisance, a pest, and a menace to the cotton industry" of this state. See section 2-16-602(a). The Act's stated purpose is "to secure the suppression or eradication of the boll weevil and to provide for certification of a cotton growers' organization to cooperate with state and federal agencies in the administration of any available cost-sharing programs for the suppression or eradication of the boll weevil." Section 2-16-602(b). The Act specifically authorizes the Board "to carry out programs to suppress or eradicate the boll weevil in this state." Section 2-16-606. It further grants the Board authority to enter cotton fields and cotton processing facilities in this state without a warrant in order to carry out suppression or eradication activities, including inspection, monitoring, treatment with pesticides, and destruction of plants. Section 2-16-607. The Board is also granted authority to promulgate regulations quarantining any part of the state and regulating the movement and storage of such quarantined plants as is necessary, or appears reasonably necessary, to prevent or retard the spread of the boll weevil. Section 2-16-609.
Section 2-16-610 gives the Board authority to make regulations designating particular eradication zones throughout the state and mandating commercial cotton growers to participate in eradication efforts. Of particular importance in this case is section 2-16-610(b), which provides:
(1) The board may promulgate reasonable regulations regarding areas where cotton cannot be planted within an eradication zone when there is reason to believe it will jeopardize the success of the program or present a hazard to public health or safety.
(2) The board may issue regulations prohibiting the planting of noncommercial cotton in such eradication zones, and requiring that all growers of commercial cotton in the eradication zones participate in a program of boll weevil eradication including cost sharing as prescribed in the regulations. [Emphasis added.]
Section 2-16-610(d) also grants the Board the authority to set penalty fees, not to exceed a charge of $25 per acre, to be assessed when growers in designated eradication zones do not meet the requirements of Board regulations pertaining to the reporting of acreage and participation in cost sharing of the eradication program. Subsection (e) provides that when a grower fails to meet the requirements of the eradication regulations, the Board may destroy cotton not in compliance with such regulations.
Section 2-16-612 provides that the Board may certify a cotton growers' organization (CGO) for the purpose of contracting with the state or other jurisdictions to carry out the purposes of the Act. That section also provides specific requirements for the CGO.
Section 2-16-614, which is also at issue in this case, provides that the CGO may request the Board to authorize a referendum to determine whether an assessment should be levied upon the cotton growers to offset the cost of boll-weevil-eradication programs. Subsection (a) provides:
(1) At the request of the certified cotton growers' organization, the State Plant Board shall authorize a referendum among cotton growers in a designated region on the question of whether an assessment shall be levied upon cotton growers in that region to offset, in whole or in part, the cost of boll weevil suppression, preeradication, eradication, or maintenance programs authorized by this subchapter or any other law of this state.
(2) The program shall be designed on a regional basis so as to reflect the differences in boll weevil infestation and the relative costs of financing boll weevil suppression and eradication programs in the respective regions. [Emphasis added.]
Passage of the referendum requires approval by two-thirds of those voting in the referendum. Section 2-16-614(c)(4). Subsection (b) provides that any assessment "levied under this subchapter," or under the Act, shall be based upon the number of acres of cotton planted in the eradication zone and shall not exceed $50 per acre.
Section 2-16-614(d)(1) provides that "assessments approved under the subchapter" shall be collected from the affected cotton growers by the CGO or other entity designated by the Board. Subsection (d)(2) provides that "[t]he assessments collected by the board or such other agency or entity designated by the board under this subchapter" shall be promptly remitted to the CGO. Subsection (f) then specifically provides that "[t]he assessments collected by the board under this subchapter shall not be state funds."
Section 2-16-615 states that the CGO shall bear all expenses incurred in conducting any referenda that it may request, including the costs of furnishing ballots and arranging for the necessary poll holders. Section 2-16-616 provides that in the event a referendum fails, the CGO may call other referenda, with the consent of the Board. After the passage of a referendum, "the eligible voters shall be allowed by subsequent referenda to be held upon recommendation of the certified cotton growers' organization to vote on whether to eliminate or modify the [eradication] program." Section 2-16-616(b)(1).
Finally, section 2-16-617 provides for per-acre penalties for the failure to pay any assessments levied under the Act. It further gives the Board the authority to petition the circuit court to order condemned and destroyed as public nuisances any cotton plants growing on acreage of persons who have failed to timely pay the assessments, including penalties. The Board may also secure a lien on such cotton plants. On the other hand, section 2-16-617 requires the Board to establish by regulation a procedure in which a cotton grower may apply for exemption from payment of such levied assessments on the basis that the payment will impose an undue financial hardship on the grower. The determination of whether a grower qualifies for such an exemption lies with the CGO, whose determination on the matter is final and binding on the grower.
In the present case, the CGO, the Arkansas Boll Weevil Eradication Foundation (the Foundation), made four separate attempts to gain the cooperation of the cotton growers in the NEDZ in order to establish a mandatory eradication program. Each of these referenda was approved by a majority of the voters, but failed to achieve the two-thirds majority required under section 2-16-614. In March 2003, at the request of the Foundation, the Board's Boll Weevil Committee met to discuss alternative methods and ways to implement an eradication plan for the NEDZ. The Committee proposed passage of a regulation imposing an eradication plan and assessment for the NEDZ at a cost of $6 per acre. During a board meeting on April 9, 2003, the Board reviewed the matter and formally proposed adoption of the regulation,...
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