Case 1:20-cv-03190-RCL Document 71 Filed 08/27/21 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`AMERICAN SOYBEAN ASSOCIATION, et al.,
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`Plaintiffs,
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`No. 1:20-cv-03190-RCL
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`U.S. ENVIRONMENTAL PROTECTION
`AGENCY, et al.,
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`v.
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`Federal Defendants,
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`and
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`Intervenor-Defendants.
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`BASF CORPORATION, et al.,
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`FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF
`MOTION FOR STAY AND EXTENSION OF DEADLINE TO FILE CERTIFIED LIST
`OF ADMINISTRATIVE RECORD CONTENTS
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`Federal Defendants, the U.S. Environmental Protection Agency (“EPA”), Administrator
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`Michael S. Regan, and Marietta Echeverria in her official capacity as Acting Director of the
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`Registration Division of EPA’s Office of Pesticide Programs respectfully submit this reply in
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`support of their motion to stay this case pending the D.C. Circuit’s resolution of petitions for
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`review of the same agency actions challenged here. See Dkt. No. 64 (“Stay Motion”).
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`Growers argue that this Court and the D.C. Circuit should simultaneously consider
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`lawsuits raising the same issues, asserted by the same parties, challenging the same agency
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`actions. That approach would be an inefficient use of the Court’s and the parties’ resources. In
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`exercising its discretion to grant a stay, the Court “must weigh competing interests and maintain
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`an even balance between the court’s interest in judicial economy and any possible hardship to the
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`Case 1:20-cv-03190-RCL Document 71 Filed 08/27/21 Page 2 of 6
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`parties.” Ctr. for Biological Diversity v. Ross, 419 F. Supp. 3d 16, 20 (D.D.C. 2019) (quoting
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`Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 732-33 (D.C. Cir. 2012) (internal
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`quotation marks omitted). Here, the benefits to judicial economy from staying this case
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`outweigh any potential harm to Growers.
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`I.
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`Judicial Economy Strongly Favors a Stay.
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`As Federal Defendants argued in their Stay Motion, it would be inefficient to
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`simultaneously litigate Growers’ challenges to the Registration Decisions in both this Court and
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`the D.C. Circuit. Stay Mot. 5. Federal Defendants have consistently taken the position that
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`subject matter jurisdiction to review the Registration Decisions lies with the federal district
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`courts under 7 U.S.C. § 136n(a). Nonetheless, the D.C. Circuit declined to resolve that issue and
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`is proceeding to briefing on the merits, with the parties required to address subject matter
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`jurisdiction in their briefs. Order, ECF No. 1906276, Am. Soybean Ass’n v. Regan, No. 20-1441
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`(D.C. Cir. July 14, 2021). The parties have submitted a proposed briefing schedule to that court,
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`with briefing scheduled to conclude on July 8, 2022. Resp’ts’ Notice Proposed Briefing Format,
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`ECF No. 1910249, Am. Soybean Ass’n v. Regan, No. 20-1441 (D.C. Cir. Aug. 13, 2021). In
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`light of the D.C. Circuit’s decision to proceed with briefing on both subject matter jurisdiction
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`and the merits, proceeding with Growers’ case in this Court is duplicative and unnecessary.
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`There is no need for this Court or the parties to expend resources addressing the threshold
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`question of subject matter jurisdiction when the D.C. Circuit will do so anyway. Where
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`challenges to the same agency action are pending in both district and appellate courts, district
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`courts commonly stay proceedings to await the appellate court’s decision as to where subject
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`matter jurisdiction lies. See Catskill Mtns. Chapter of Trout Unlimited v. EPA, 630 F. Supp. 2d
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`295, 305 (S.D.N.Y. 2009) (staying district court case pending outcome of appellate case that
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`would “advise this Court as to whether the Eleventh Circuit views itself as having exclusive
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`Case 1:20-cv-03190-RCL Document 71 Filed 08/27/21 Page 3 of 6
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`jurisdiction over the subject matter of the instant actions”); Riverkeeper, Inc. v. EPA, No. 06-cv-
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`12987, 2007 WL 4208757, at *1 (S.D.N.Y. Nov. 26, 2007) (staying district court case so Fifth
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`Circuit could address “whether the courts of appeals have exclusive jurisdiction to review”
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`action); Oklahoma ex rel. Pruitt v. EPA, No. 15-cv-0381, 2015 WL 4607903, at *3-4 (N.D. Okla.
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`July 31, 2015) (stating fact that Sixth Circuit was considering challenges to same agency action
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`“weighs heavily in favor of staying this case” because “it would undoubtedly be a waste of
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`judicial resources for plaintiffs’ cases to proceed if it is ultimately determined that jurisdiction is
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`appropriate only in a federal circuit court of appeal”). This Court should do the same.
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`Growers dismiss the potential for inefficiency or conflicting rulings if this Court proceeds
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`to the merits, arguing that the D.C. Circuit “is unlikely to reach any merits issues.” Growers’
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`Resp. 3-4. Federal Defendants agree that the D.C. Circuit should find that jurisdiction lies in the
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`district courts under 7 U.S.C. § 136n(a) and dismiss the petitions for review. But because a
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`federal court must satisfy itself of its own jurisdiction regardless of the parties’ positions, it is
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`possible that the D.C. Circuit may ultimately disagree.1 If it does, any briefing and decision on
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`the merits in this case will be rendered moot.
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`II. Any Potential Harm to Growers Does Not Outweigh the Benefits to Judicial
`Economy.
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`The only potential “prejudice” that Growers have identified from staying this case is the
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`possibility that another district court case challenging the Registration Decisions in the District
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`of Arizona might “leapfrog[] this one.” Growers’ Resp. 4. But Growers are incorrect that a stay
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`would leave them “locked in limbo and voiceless” while the Arizona case proceeds. Id. at 3. To
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`the contrary, the D.C. Circuit proceedings are moving ahead under a proposed briefing schedule
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`1 Growers themselves apparently recognize this possibility, as they have not dismissed their own
`protective petitions for review in the D.C. Circuit, despite the fact that “everyone challenging the
`Dicamba Decision agrees[] jurisdiction lies in the district court.” Growers’ Resp. 4.
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`in which Growers will have an opportunity to present their arguments on both jurisdiction and
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`the merits. As discussed above, while Federal Defendants and Growers both believe that the
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`D.C. Circuit should ultimately find that it lacks subject matter jurisdiction, it is also possible that
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`the D.C. Circuit will disagree and issue a decision on the merits of Growers’ challenges to the
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`Registration Decisions.
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`In any event, to the extent that the relative pace of other litigation is relevant to the stay
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`analysis here, it is far from certain that the District of Arizona case is “proceeding full steam
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`ahead” to adjudication of the merits. Growers’ Resp. 1. In fact, the parties in that case are
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`currently engaged in briefing regarding how to govern the case in light of the D.C. Circuit’s
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`decision to carry forward the issue of subject matter jurisdiction to merits briefing.
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`Specifically, the Arizona court issued an order stating that it “intends to address
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`jurisdiction before deciding” the Arizona intervenors’ pending motion to transfer the case to this
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`Court, and that it “seeks briefing on the propriety of two courts exercising jurisdiction
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`simultaneously to decide the question of jurisdiction.” Order, Dkt. No. 56, Ctr. for Biological
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`Diversity v. EPA, No. 20-cv-555 (D. Az. July 28, 2021) (“CBD v. EPA”). The court ordered the
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`Arizona plaintiffs to file a “Motion to Determine Jurisdiction.” In their motion, the Arizona
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`plaintiffs argued for district court jurisdiction and asked the court to proceed to the merits. Mot.
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`Det. Jurisdiction, Dkt. No. 57, CBD v. EPA (D. Az. Aug. 6, 2021). In their response, Federal
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`Defendants also argued for district court jurisdiction, but urged the Arizona court to defer ruling
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`on jurisdiction in light of the pending D.C. Circuit proceedings and to instead either (1) grant the
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`intervenors’ motion to transfer or (2) stay the case.2 EPA’s Resp. Pls.’ Mot. Det. Jurisdiction,
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`2 Accordingly, Growers’ suggestion that EPA has taken inconsistent approaches in this case and
`CBD v. EPA is incorrect. Growers’ Resp. 3.
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`Case 1:20-cv-03190-RCL Document 71 Filed 08/27/21 Page 5 of 6
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`Dkt. No. 58, CBD v. EPA (D. Az. Aug. 20, 2021). The Arizona intervenors (who are identical to
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`Intervenor-Defendants in this case) took the same position as Federal Defendants. Joint Resp.
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`Pls.’ Mot. Det. Jurisdiction by Def.-Intervenors, Dkt. No. 59, CBD v. EPA (D. Az. Aug. 20,
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`2021). The Arizona plaintiffs’ reply is due on August 27. Thus, the District of Arizona has yet
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`to determine whether and how it will proceed with that case.
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`III.
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`Federal Defendants Do Not Object to Resolving Their Motion for Partial Dismissal.
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`Growers argue that if the Court stays this case, it should first decide Federal Defendants’
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`pending motion for partial dismissal. Growers’ Resp. 5. Federal Defendants do not object to
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`Growers’ request. That motion has been fully briefed, and because the issues raised are not
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`present in the D.C. Circuit proceedings, deciding that motion would not present the same risk of
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`inefficiency or inconsistency as would proceeding with the merits of Growers’ challenge.
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`CONCLUSION
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`For the foregoing reasons, the Court should grant Federal Defendants’ Stay Motion.
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`Respectfully submitted,
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`Date: August 27, 2021
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`Of Counsel:
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`Michele Knorr
`Scott Garrison
`U.S. Environmental Protection Agency
`Office of General Counsel
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`/s/ Andrew D. Knudsen
`ANDREW D. KNUDSEN
`Environmental Defense Section
`(202) 353-7466
`Andrew.Knudsen@usdoj.gov
`DC Bar No. 1019697
`J. BRETT GROSKO
`Wildlife and Marine Resources Section
`(202) 305-0342
`Brett.Grosko@usdoj.gov
`MD Bar No. 0106180001
`U.S. Department of Justice
`Environment & Natural Resources Section
`P.O. Box 7611
`Washington, DC 20044
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`Counsel for Federal Defendants
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`Case 1:20-cv-03190-RCL Document 71 Filed 08/27/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I certify that on August 27, 2021, a copy of the foregoing was served by electronic means
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`on all counsel of record by the Court’s CM/ECF system.
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` /s/ Andrew D. Knudsen
`Andrew D. Knudsen
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