Cite as 2022 Ark. 29

SUPREME COURT OF ARKANSAS

No. CV-21-250

BAYER CROPSCIENCE, LP

APPELLANT

V.

GLEN HOOKS; MICHAEL DOUGAN; 

PRATT REMMELL; REED STOREY; TIM 

FISHER; VICTOR GRAY; BLAND 

CURRIE; GLADYS WHITNEY; 

FRANCES WILSON SHACKLEFORD; 

ADAM FISHER; GUY FISHER; PADEN 

BALL; GALE STEWART; COY’S HONEY 

FARM, INC.; ARKANSAS STATE PLANT 

BOARD, A DIVISION OF THE 

ARKANSAS DEPARTMENT OF 

AGRICULTURE; ARKANSAS STATE 

PLANT BOARD MEMBERS IN THEIR 

OFFICIAL CAPACITIES: WALTER 

“BRUCE” ALFORD; KYLE BALTZ; 

TOMMY ANDERSON; REYNOLD 

MEYER; DARRELL HESS; MARTY 

EATON; BARRY WALLS; TERRY 

FULLER; MARK HOPPER; BRAD KOEN; 

SAM STUCKEY; TERRY STEPHENSON; 

DR. KEN KORTH; DR. NATHAN 

SLATON; MATTHEW MARSH; JASON 

PARKS; SCOTT MILBURN; DENNIE 

STOKES; MARK MORGAN; OMP 

FARMS, LLC; OZARK MOUNTAIN 

POULTRY, INC.; FREEDOM TO FARM 

FOUNDATION, INC.; JASON MCGEE; 

TIM GANNON; LESLIE BROWN; 

HOLLIS MANKIN; FARMVOICE, INC.; 

TIMOTHY PIRANI; ADAM HENARD; 

AND JARRED HOPPER

APPELLEES

Opinion Delivered: February 10, 2022

APPEAL FROM THE PULASKI 

COUNTY CIRCUIT COURT [NO. 

60CV-17-3384]

HONORABLE MORGAN E. WELCH, 

JUDGE

REVERSED AND REMANDED.

BARBARA W. WEBB, Justice

Bayer Cropscience, LP (Bayer), appeals from an order of the Pulaski County Circuit 

Court denying its motion to intervene in a lawsuit challenging a rule adopted by the 
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Arkansas State Plant Board (Plant Board) on May 3, 2021 (the “2021 Dicamba Rule”). On 

appeal, Bayer argues that the circuit court erred in denying its motion to intervene as a 

matter of right and, alternatively, its motion for permissive intervention. We find merit in 

Bayer’s first point and therefore reverse and remand.

I. Relevant Facts and Procedural History

Bayer manufactures and sells the herbicide Dicamba. Dicamba is used in conjunction 

with Dicamba-resistant cotton and soybean seeds to combat Palmer amaranth, a native plant 

species that is commonly referred to as “pig weed.” Palmer amaranth, which can grow up 

to ten feet in height, outcompetes row crops. 

In 2017, the Environmental Protection Agency first authorized year-round use of 

Dicamba. Since then, Dicamba has been the subject of considerable litigation. It was 

established in hearings before the Plant Board that Dicamba is highly volatile and has a 

tendency to evaporate, go off-target, and damage other plants. See Ark. Plant Bd. v. McCarty, 

2019 Ark. 214, 576 S.W.3d 473. As a result, use of Dicamba has been restricted by Plant 

Board rule to certain times of the year and within areas surrounded by buffer zones to 

minimize its effect on other crops. See, e.g., id. Bayer made certain product improvements 

that addressed Dicamba’s tendency to vaporize and drift from the target crops. It referred to 

the new product as “XtendiMax with VaporGrip technology.” As a result, after a hearing 

before the Plant Board, the 2018 Dicamba Rule was superseded by the 2021 Dicamba Rule 

that extended the growing season cutoff date for use from May 25 to June 30 and shrank

the required buffer zones from one mile to a quarter of a mile. 

On May 6, 2021, appellees filed in the Pulaski County Circuit Court a complaint 
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against the Plant Board and its members in their official capacities. The complaint sought 

declaratory judgment, asserting that in the course of adopting the 2021 Dicamba Rule, the 

Plant Board violated the Administrative Procedure Act (APA) in several respects. It also 

alleged that the Plant Board did not review “the best, reasonably obtainable scientific, 

technical, economic evidence and information available showing the need for, consequences 

of, and alternatives to the existing rule,” which violated Arkansas Code Annotated section

25-15-204(a)(3) & (b)(1). The complaint also sought permanent injunctive relief that would 

invalidate the 2021 Dicamba Rule and reinstate the 2018 Dicamba Rule. On May 24, 2021, 

the circuit court, entered a temporary restraining order banning the use of Dicamba under 

the 2021 Dicamba Rule.

On May 24, 2021, FarmVoice, Inc., an organization of row-crop farmers who 

favored the use of Dicamba, moved to intervene. Two days later, Bayer likewise moved to 

intervene. It argued that it was entitled to intervene by right, pursuant to Arkansas Rule of 

Civil Procedure 24(a) and, alternatively, by permission pursuant to Rule 24(b). Bayer 

asserted that it had an interest in defending “its products, including their utility and efficacy, 

and the federal label”; “the science supporting those state and federal regulatory decisions”;

its “financial interest in the continued ability of Arkansas farmers to use its products through 

the full period permitted by the federal label”; and its “reputational interest” in the product.

The appellees opposed Bayer’s motion to intervene and denied that Bayer had any 

interest in the litigation. They also asserted that “under the rules and procedures contained 

in Ark. Code Ann. § 25-15-212, Bayer has no standing to intervene in this case” because 

“Bayer does not claim to be injured by ‘final agency action.’” Appellees further asserted that 
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“Bayer cannot claim to be injured by final agency action as it participated in the [Plant 

Board] proceedings by submitting comments, and the final agency action in the form of the 

enactment of the dicamba rule of May 3, 2021, was favorable to Bayer.” The appellees 

further argued that in its motion, Bayer stated its intention to respond to the “allegations 

that the use of dicamba herbicides will cause widespread and irreparable harm; that the best 

available science does not support the regulatory decisions of EPA and the Plant Board; and 

that Bayer will incur financial harm if the Plant Board’s order is not approved,” which 

violates Arkansas Code Annotated section 25-15-212(g) (Supp. 2021).

In denying Bayer’s motion to intervene, the circuit court presumably found 

appellees’ last argument persuasive. Citing section 25-15-212, it found that “[p]ursuant to 

the Arkansas Administrative Procedure Act, the June 10, 2021 proceeding shall be confined 

to the record established prior to the appeal, excepting testimony regarding any procedural 

irregularities not shown in the record.” Bayer timely appealed.

II. Intervention as a Matter of Right

A. Standard of Review

This court review’s a circuit court’s statutory interpretation de novo, as it is this 

court's responsibility to determine what a statute means. Douglas Companies, Inc. v. Walther, 

2020 Ark. 365, 609 S.W.3d 397. Likewise, denial of a motion to intervene as a matter of 

right is reviewed de novo. Certain Underwriters at Lloyd’s, London v. Bass, 2015 Ark. 178, at 

8–9, 461 S.W.3d 317, 323. In Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership, 

2021 Ark. 17, 614 S.W.3d 811, we held that if a putative intervenor satisfies the 

requirements for intervention as of right specified by Arkansas Rule of Civil Procedure 
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24(a)(2), the circuit court cannot deny the motion to intervene. Apart from the threshold 

timeliness requirement, Rule 24(a)(2) establishes three requirements for intervention of 

right: (1) the applicant must have a recognized interest in the subject matter of the primary 

litigation; (2) the applicant’s interest might be impaired by the disposition of the suit; and 

(3) the applicant’s interest is not adequately represented by existing parties. See Bass, 2015 

Ark. 178, at 14, 461 S.W.3d at 326. 

B. Argument

We first consider Bayer’s contention that, in denying its motion to intervene, the 

circuit court relied on an inapplicable section of the APA rather than Rule 24. As noted 

previously, the circuit court based its decision to deny intervention on section 25-15-212(g). 

It notes that the instant litigation challenges an agency rulemaking, whereas section 25-15-

212 applies only to appeals of agency adjudications. See Ark. Code Ann. § 25-15-212(a) 

(“In cases of adjudication, any person . . . who considers himself or herself injured in his or 

her person, business, or property by final agency action shall be entitled to judicial review 

of the action under this subchapter.”). Bayer contends that an adjudication is “an agency 

process for the formulation of an order.” Ark. Code Ann. § 25-15-202(1)(A). Further, an 

order is “the final disposition of an agency in any matter other than rulemaking.” Ark. Code 

Ann. § 25-15-202(6). Bayer asserts that appellees challenge a rulemaking, not an 

adjudication, which means that their complaint is brought under section 25-15-207––not 

section 25-15-212. It asserts that section 25-15-207 does not limit review to the agency 

record. Thus, the circuit court erred in holding that section 25-15-212(g) applies to this 

litigation and prevents Bayer’s intervention. We find this argument compelling.
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While both judicial review of adjudications and declaratory judgments are provided 

for under the APA, the scope and relevant procedures are not interchangeable. As provided 

in section 25-15-212(h), 

(h) The court may affirm the decision of the agency or remand the case 

for further proceedings. It may reverse or modify the decision if the substantial 

rights of the petitioner have been prejudiced because the administrative 

findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the agency's statutory authority;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Not supported by substantial evidence of record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion.

By comparison, under section 25-15-207 of the APA,, the purpose of declaratory 

judgment serves a much different purpose:

The validity or applicability of a rule may be determined in an action 

for declaratory judgment if it is alleged that the rule, or its threatened 

application, injures or threatens to injure the plaintiff in his or her person, 

business, or property.

We hold that section 25-15-212 of the APA, does not bar the granting of circuit court 

clearly erred in denying Bayer’s motion to intervene. based on section 25-15-212. Because 

we find this argument dispositive on this subpoint, we need not consider Bayer’s alternative 

argument that even if section 25-15-212(g) does apply, it would not bar intervention.

However, our determination that the circuit court’s rationale for denying Bayer’s 

motion to intervene was incorrect does not end our inquiry. Because the APA provides no 

standard for intervention, Rule 24 applies. We must therefore consider whether Bayer met 

the requirements of Rule 24. because we will affirm if the circuit court reached the right 

result, even though it stated the wrong reason. See Bushong v. Garman Co., 311 Ark. 228, 
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843 S.W.2d 807 (1992).

Bayer argues that it was entitled to intervene as a matter of right because it satisfied 

all the requirements stated in Arkansas Rule of Civil Procedure 24. Bayer asserts that the 

motion was timely; it has protectable interests in the enforcement of the agency rule at issue 

and in defending the federal registration and label for its low-volatility dicamba herbicide; 

resolution of appellees’ claims could impair Bayer’s interests; and none of the parties 

adequately represent Bayer’s interests. We agree.

We first note that Bayer’s motion to intervene was filed just twenty days after the 

appellees filed their complaint. In McLane Co. v. Davis, 342 Ark. 655, 659, 33 S.W.3d 473, 

475 (2000), we set forth the criteria whereby we might judge timeliness: (1) how far have 

the proceedings progressed; (2) has there been any prejudice to other parties caused by the 

delay; and (3) what was the reason for the delay. Id. There has been no appreciable delay in 

Bayer’s filing, and no prejudice is indicated because the circuit court entered a temporary 

restraining order prior to Bayer’s filing.

We next consider whether Bayer has a sufficient “interest” to support a right to 

intervene. Our inquiry is guided by Cherokee Nation Businesses, supra. There, in our de novo 

review, we determined that Cherokee had a sufficient interest in the litigation based on its 

status as the only qualified applicant for the Pope County casino license and a contractual 

economic development agreement with Pope County. Id. And, as in the case before us, the 

putative intervenor had only a monetary interest in the outcome of the litigation. The rule 

governing the application of Dicamba directly affects the product’s marketability. This 

analysis dovetails with the second factor enumerated in Rule 24: whether the putative 
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intervenor’s interest might be impaired by the disposition of the suit. Bayer has asserted that 

by allowing less application time, it will sell less product and denigrate the “VaporGrip” 

technology, which imposes a reputational injury. We hold that the second factor has been

established.

Finally, Bayer was required to show that its interest is not adequately represented by 

the Plant Board. We agree with Bayer that appellees’ complaint directly challenges whether 

the Plant Board reviewed “the best, reasonably obtainable scientific, technical, economic 

evidence and information available showing the need for, consequences of, and alternatives 

to the existing rule.” As both Bayer and appellees contend, much of that information was 

presented by Bayer. In effect, Bayer is in a position to defend the information that persuaded 

the Plant Board to extend the application time for Dicamba in the 2021 Dicamba Rule. As 

such, we hold that Bayer’s interest in this area is not adequately represented by the Plant 

Board. Thus, we hold that the circuit court clearly erred in denying Bayer’s motion to 

intervene. We therefore reverse the circuit court’s denial of the motion to intervene and 

order that it allow Bayer to intervene as a matter of right. Having so held, it is not necessary 

to consider Bayer’s alternative argument concerning permissive intervention.

Reversed and remanded.

Brett D. Watson, Attorney at Law PLLC, by: Brett D. Watson; and Bryan Cave Leighton 

Paisner LLP, by: A. Elizabeth Blackwell and Stefani L. Wittenauer, for appellant.

Richard Mays Law Firm, PLLC, by: Richard H. Mays, for appellees.