MSGA: dicamba ruling leaves farmers in a bind

This is a developing story

The Minnesota Soybean Growers Association (MSGA) strongly disagrees with the Ninth Circuit Court’s ruling late Wednesday, which overturned EPA’s approval of several dicamba-based herbicides made by Bayer, BASF and Corteva Agrisciences. In a conference call Thursday afternoon, officials from the Minnesota Department of Agriculture informed MSGA that, as the law currently stands, using Bayer, BASF and Corteva dicamba applications is illegal. However, Tavium remains legal for post-emergent use up to the V4 stage. MDA pledged to notify MSGA if the agency becomes aware of any modifications to the ruling.

“This decision is extremely disappointing, and we hope to see it rectified,” says MSGA Director Bob Worth, a Lake Benton farmer and chair of the organization’s Drift Task Force. “In Minnesota, we’ve been good stewards of this product and have led the way nationally on this issue.”

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that EPA, “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks,” and will effectively remove the product from the market. At this time, it is unclear if the mandate from the decision – which would vacate the registrations – cannot take effect for at least 14 days from the decision date until EPA—and potentially Bayer — has the ability to request a rehearing or en banc hearing. Those actions would automatically stay the mandate until the Ninth Circuit can rule on the request for a rehearing/en banc, which could extend the time needed for further actions. EPA (and Bayer) also has 90 days to request an appeal to the Supreme Court; however, an appeal won’t necessarily further stay the mandate.

“We strongly disagree with the ruling and are assessing our next steps. We will also await
direction from the EPA on actions it may take in response to the ruling,” Bayer said in a statement. “We will follow up in the coming days with more details about the ruling and our next steps. We also created this new webpage that we will keep updated with the latest information.

In 2017, MSGA formed a farmer-led Drift Task Force, the first farmer-led effort to examine the data and science behind suspected dicamba damage reports. The Task Force worked with industry and researchers to find answers and solutions moving forward.

Although MSGA recommended MDA determine a cutoff date for dicamba application, the Drift Task Force did not advocate for any specific date. MDA issued a June 20 application deadline. Dicamba (Xtend, Engenia or Fexapan) products labeled for dicamba tolerant soybeans have multiple cutoff time frames. The EPA (federal) label limits application to within 45 days post planting or to R1 (one flower anywhere on the soybean stem, aka vegetative state only), whichever comes first.

“We’re proud of the recommendations made by our Drift Task Force,” Worth says. “Ultimately, we disagree with the Court’s ruling and we want new technologies to be used correctly and continue to be available for farmers to use.”

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