FARGO, N.D. — North Dakota Agriculture Commissioner Doug Goehring on Friday, June 5, issued a state registration to allow farmers to spray three dicamba formulations on dicamaba-tolerant soybeans, despite a federal court’s decision to drop federal labels for the product.

Minnesota and other states remained under new federal restrictions as of the afternoon of Friday, June 5, Extension specialists said.

The Ninth Circuit Court of Appeals in San Francisco late on Wednesday, June 3, “vacated the labels” approved by the Environmental Protection Agency for most formulations that are sprayed over growing soybeans. The court said the agency and registrants knew the chemical could cause unacceptable drift to susceptible beans and other non-target crops. About half of North Dakota farmers have the dicamba-resistant beans.

Goehring’s 24c Special Local Needs state label allows the use of Xtendimax, FeXapan and Engenia use in North Dakota, saying there has not been a “formal notice” of the products’ label revocations.

Goehring at 9 a.m. said he’d be duty-bound to enforce the federal ban for the uses, because of his duty as a “constitutional officer.” But shortly afer noon, his office issued a press release on the state label that allows the applications.

He said he changed his mind based on visits with legal counsel. “I needed to know if what I did is going to work,” he explained.

Goehring said he’d consider changing his stance if the EPA “formally notifies” him that the state label could not be in effect. He declined to speculate whether that will happen soon, or before the month is out and the issue is moot.

Goehring called the federal court’s action “unrealistic and unreasonable.” Goehring said he’d “visited with a couple of states that are working along the same lines.” He said the local needs registration was “the route I chose” but declined to divulge other options he’s considering.

Asked if he thought he could be held in contempt of the federal court, Goehring responded, “I don’t know,” I don’t really care,” he said. “It was irresponsible for the court to do what they did. They gave us as regulators no choice. They gave EPA no choice."

Goehring said most phone calls he received Thursday, June 4 were from farmers who were “quite emphatic they need the dicamba,” especially to control kochia weeds that had gotten too tall to be controlled otherwise. “We’re burning up time and the month of June is disappearing on us,” Goehring said.

Tavium

Earlier in the day on June 5, Goehring had been in phone huddles on June 4 with other counterpart commissioners or secretaries of agriculture, to discuss the logistics for appealing the decision. He said EPA could launch appeals both to the Ninth Circuit Court of Appeals, or to the U.S. Supreme Court but he didn’t know if they can do it in time to make a difference for North Dakota.

Goehring said he didn’t know whether the EPA would treat the chemical, a Syngenta-made product that is tank-mixed with Dual and is intended for use earlier in the season.

Even if legally available, Goehring didn’t know how much of the Tavium would be in place in time.

Adam Spelhaug, agronomy manager for Peterson Farms Seed, said the dicamba technology is his company’s second most popular technology, next to Enlist-resistant beans.

He said that Tavium is good premix with dicamba and Dual, but couldn’t say how far supplies go, or how timely they can be. “I”m assuming they didn’t expect to have 100% of the market,” Spelhaug said. Most of the soybeans of all types are planted, so would farmers have a limited ability to shift away from dicamba beans at this late date.

Spelhaug noted that his company contracts with growers to grow soybean seed for future crops. The company’s Xtend contracts, require the producer to use glyphosate, but they are not required to apply dicamba.

Spelhaug didn’t know what percent of farmers purchased dicamba-ready soybeans in 2020 with a specific intent to control weeds with dicamba. Some farmers may have purchased them with a combination of three different motives — 1) to get the latest soybean seed technology, 2) brand loyalty, or 3) as a defensive measure to prevent injury from a neighbor who sprays dicamba.

Tom Sinner Jr., a field production manager for Remington Seeds, at Mapleton, N.D., in an area covering northeast South Dakota, much of northwest Minnesota and eastern North Dakota, said his company’s seed production contracts for future dicamba-resistant soybeans don’t require using dicamba in the seed production.

Scrambling on

Meanwhile, Joe Ikley, North Dakota State University Extension weed specialist, and Tom Peters, North Dakota State University and University of Minnesota Extension sugar beet agronomist, had scrambled on Thursday, June 4, to offer options on how to follow the rules without an ability to spray Xtendimax, Engenia and FeXapan.

Peters said the Minnesota Department of Agriculture has not yet instituted a state special label, so the restrictions are still in place. Ikley and Peter, in NDSU’s weekly “Crop & Pest Report,” listed options for control of certain weeds:

  • Waterhemp: Most waterhemp is resistant to ALS-inhibiting (Group 2) herbicides. Most acres also are glyphosate-resistant. Use glyphosate up to two leaf stage, applied “at labeled rates with adjuvants.”The best remaining options would be PPO-inhibiting (Group 14) herbicides -- Flextstar (fomesafen),Cobra or Ultra Blazer. Use oil adjuvants. (Flexstar is prohibited after June 20, west of U.S. Highway 281, which runs through Ellendale, Jamestown, and Cando)

  • Common lambsquarters: Harmony (thifensulfuron) is one of the best remaining options for Xtend acres, considering glyphosate offers “variable” control.

  • Kochia: Farmers with glyphosate-resistant kochia, could use Flexstar with maximum spray coverage and full rates of oil adjuvants. Areas that don’t have glyphosate-resistant kochia can use glyphosate.

  • Common ragweed: Control common ragweed with glyphosate, Firstrate and Flexstar except for some populations known to be resistant to glyphosate and FirstRate.

  • Horseweed/marestail: Most horseweed is resistant to glyphosate, so FirstRate is the best remaining option, except for some populations resistant to FirstRate. “Unfortunately, we are left with no effective postemergence options in Xtend soybean for horsweweed populations that are resistant to both glyphosate and Firstrate,” Ikley said.

The two Extension specialists noted a number of caveats:

  • Group 14 herbicides are “contact herbicides” and work better with higher “carrier volumes and smaller droplets.”

  • Flexstar can have “carryover issues” for rotational crops like corn and sugar beets. “Basagran is another herbicide option to control those weeds.”

The specialists said growers should “reset weed control expectations,” when replacing dicamba. The alternatives work best when weeds are less than 1 inch tall, and many are already bigger than that so “inconsistent control could be expected.”

  • Group 15 herbicides won’t control emerged plants, but will “help control later-emerging waterhemp.”