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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 1 of 25
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`No. 19-70115
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`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
`
`Petitioners,
`
`v.
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents,
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`MONSANTO COMPANY,
`
`Intervenor-Respondent,
`
`and
`E. I. DU PONT DE NEMOURS AND COMPANY,
`Proposed Intervenor-Respondent.
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`E.I. du PONT de NEMOURS AND COMPANY’S EMERGENCY MOTION
`TO INTERVENE UNDER FEDERAL RULE OF APPELLATE
`PROCEDURE 15(d) AND CIRCUIT RULE 27-3
`RELIEF REQUESTED BY EARLIEST POSSIBLE DATE
`Kirsten L. Nathanson
`David Y. Chung
`Amanda S. Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`Intervenor-
`Counsel
`for Proposed
`Respondent E.I. du Pont de Nemours and
`Company
`
`
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 2 of 25
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Federal Rule of Appellate Procedure 26.1, E.I. du Pont de
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`Nemours and Company (“EID”) respectfully submits the following Corporate
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`Disclosure Statement:
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`EID is a Delaware corporation wholly owned by Corteva, Inc., a publicly
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`traded company. No other corporation holds a 10% or greater ownership interest in
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`EID.
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`June 12, 2020
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`
`
`
`
`
`
`
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`Respectfully submitted,
`
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`David Y. Chung
`Amanda S. Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`Intervenor-
`Counsel
`for Proposed
`Respondent E.I. du Pont de Nemours
`and Company
`
`i
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 3 of 25
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`CIRCUIT RULE 27-3 CERTIFICATE
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`The undersigned counsel certifies that the following information is true and
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`correct, as required by Circuit Rule 27-3:
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`1. Telephone numbers, e-mail addresses, and office addresses of the attorneys
`for the parties.
`
`Counsel for Proposed Intervenor-Respondent E.I. du Pont de Nemours and
`Company
`
`Kirsten L. Nathanson
`David Y. Chung
`Amanda S. Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`
`Counsel for Petitioners National Family Farm Coalition, et al.
`
`George A. Kimbrell
`Sylvia Shih-Yau Wu
`Amy van Saun
`Center for Food Safety
`2009 NE Alberta St., Suite 207
`Portland, OR 97211
`T: (971) 271-7372
`gkimbrell@centerforfoodsafety.org
`swu@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
`
`Stephanie M. Parent
`PO Box 11374
`Portland, OR 97211
`T: (971) 717-6404
`SParent@biologicaldiversity.org
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`ii
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`Counsel for Respondents Environmental Protection Agency, et al.
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`Sarah A. Buckley
`J. Brett Grosko
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, D.C. 20044
`Ph. (202) 616-7554 (Buckley)
`Ph. (202) 305-0342 (Grosko)
`Sarah.buckley@usdoj.gov
`Brett.Grosko@usdoj.gov
`
`Counsel for Intervenor-Respondents Monsanto Company
`
`Philip J. Perry
`Richard P. Bress
`Stacey L. Van Belleghem
`Andrew D. Prins
`Latham & Watkins LLP
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
`(202) 637-2200
`philip.perry@lw.com
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`2. Facts showing the existence and nature of the emergency.
`
`
`Proposed-Intervenor E.I. du Pont de Nemours and Company (“EID”) seeks
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`to immediately intervene in this proceeding to protect its property interest in the
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`U.S. Environmental Protection Agency registration of its product, known as
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`DuPont FeXapan Herbicide (“FeXapan”). On June 3, 2020, this Court issued an
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`opinion and judgment that vacated EID’s FeXapan registration. The Court issued
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`the mandate concurrently with the opinion and judgment. EID is now unable to
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`iii
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`sell its FeXapan product.
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`EID has an immediate interest in future proceedings, including on
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`Petitioners’ June 11, 2020 Emergency Motion to Enforce this Court’s Vacatur and
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`to Hold EPA in Contempt (ECF No. 127-1), and any other upcoming motion or
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`rehearing practice. If EID’s motion to intervene is not heard on an emergency
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`basis, EID could lose the opportunity to participate and defend its property interest
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`in the FeXapan product registration.
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`3. Explain why the motion could not have been filed earlier.
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`This issue is discussed in detail in the enclosed motion as part of the
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`timeliness element of intervention. EID is seeking intervention within ten days of
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`the vacatur of the FeXapan registration by this Court. As explained in the motion,
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`EID had no reasonable basis to conclude that its property interest in FeXapan was
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`at issue in this proceeding prior to the Court’s action, and particularly during the
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`30-day window for intervention under Federal Rule of Appellate Procedure 15.
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`4. When and how counsel notified.
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`
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`Proposed-Intervenor’s counsel notified the Clerk’s Office by email on the
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`morning of June 12, 2020, and notified counsel for all Parties by email on June 11,
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`2020. Respondents and Respondent-Intervenor do not oppose this motion.
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`Petitioners indicated they will oppose. Service will be made upon all Parties by
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`means of electronic service through the Court’s CM/ECF system.
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`iv
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`5. Relief not sought in the district court.
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`
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`The Petition for Review at issue in this case was filed directly in the court of
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`appeals pursuant to Federal Rule of Appellate Procedure 15. Intervenor-
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`Respondent therefore did not and could not seek relief in a district court.
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`
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`June 12, 2020
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`
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`
`
` Respectfully submitted,
`
`
`
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`David Y. Chung
`Amanda Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`
`Counsel for Proposed Intervenor-
`Respondent E.I. du Pont de Nemours
`and Company
`
`
`
`
`
`
`v
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`
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 7 of 25
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`EMERGENCY MOTION TO INTERVENE
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`E.I. du Pont de Nemours and Company (“EID”), requests to participate as an
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`intervenor as soon as practicable in this petition for review proceeding under
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`Federal Rule of Appellate Procedure 15(d) in support of Respondents. In
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`particular, Petitioners filed an emergency motion late last evening seeking to
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`further “enforce” this Court’s vacatur order, which, as explained below, includes
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`EID’s protectable interest. EID respectfully requests sufficient time to assess
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`Petitioners’ motion and any response.
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`INTRODUCTION
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`
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`EID seeks leave to intervene for the purpose of protecting its property
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`interest in the registration granted by the U.S. Environmental Protection Agency
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`(“EPA”) for DuPont FeXapan Herbicide (“FeXapan”) and vacated by this Court in
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`its June 3, 2020 decision. In 2019, Petitioners sought review of EPA’s decision on
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`the “same pesticide product” – Monsanto Company’s XtendiMax – that was the
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`subject of a prior petition for review proceeding brought by the same Petitioners
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`(National Family Farm Coalition, et al. v. U.S. Envtl. Protection Agency, No. 17-
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`70196 (9th Cir.)). See ECF No. 1-6 at 2. Despite Petitioners’ clear intent to only
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`challenge the “same pesticide product” as in their prior action, this Court’s June 3,
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`2020 decision vacated not just the XtendiMax registration, but also the
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`registrations for two other products – BASF’s Engenia and EID’s FeXapan. The
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`1
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`Court’s decision was issued without EID or BASF’s participation in this
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`proceeding, and without the benefit of the administrative record underlying EPA’s
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`approval of either company’s products.
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`The decision directly harms EID as the registrant and manufacturer of
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`FeXapan, as well as the many farmers across this country that are in the midst of
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`the growing season and rely on EID’s product. The panel decision also ordered the
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`mandate to issue immediately, ensuring it would be difficult for the non-party
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`registrants to protect their rights after the panel decision brought them into the case.
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`EID now moves to intervene to allow it the opportunity to protect its interests in
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`future proceedings, including in Petitioners’ emergency motion.
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`PROCEDURAL AND REGULATORY BACKGROUND
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`This case came to the Court under section 16(b) of the Federal Insecticide,
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`Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq. FIFRA is a “a
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`comprehensive regulatory statute” that “regulate[s] the use, . . . sale and labeling[]
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`of pesticides.” Bates v. Dow AgroSciences LLC, 544 U.S. 431, 437 (2005)
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`(quotation marks and punctuation omitted). Before any pesticide can be sold or
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`distributed in the United States, it must be registered under FIFRA. See 7
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`U.S.C. § 136a(a). A registration is issued to a specific registrant, for a specific
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`formula, packaging, and label. See 40 C.F.R. § 152.3; 7 U.S.C. § 136a(c)(1)(C).
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`In 2016, EPA issued a registration for XtendiMax for use on dicamba-
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`2
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`tolerant soybean and cotton, and Petitioners submitted a Petition for Review in
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`January 2017, challenging the XtendiMax registration. See Case No. 17-70196,
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`ECF No. 1. EPA amended the XtendiMax registration later in 2017, and
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`Petitioners amended their petition to seek review of the amended registration. See
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`Case No. 17-70196, ECF Nos. 62, 68. The 2016 registration expired on its own
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`terms on November 9, 2018. On November 1, 2018 EPA issued a new XtendiMax
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`registration. Case No. 17-70196, ECF No 151. Petitioners’ challenge was then
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`moot. See Nat’l Family Farm Coal. v. U.S. EPA, 747 F. App’x 646, 647-648 (9th
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`Cir. 2019). EPA issued new registrations for BASF’s Engenia on November 2,
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`2018 and for EID’s FeXapan on November 5, 2018.
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`On January 11, 2019, Petitioners filed the Petition in this proceeding, again
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`challenging Monsanto’s XtendiMax registration. Rule 15(a)(2)(C) requires
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`petitions for review to “specify the order or part thereof to be reviewed.” Fed. R.
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`App. P. 15(a)(2)(C). Petitioners cited their prior petition for review proceeding
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`that had challenged the 2016 XtendiMax registration and amended 2017
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`registration, see ECF No. 1-6 at 2-3, and described their challenge in this
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`proceeding as specifically relating to an EPA action that “extended two earlier
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`registration decisions by EPA over this same pesticide product.” Id. at 2 (emphasis
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`added). Monsanto moved to intervene. See ECF No. 11 (Jan. 24, 2019). The
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`Petition for Review did not mention EID, BASF, or EPA’s registrations of Engenia
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`3
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`and FeXapan.
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`On April 29, 2020, after full briefing and oral argument, the panel directed
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`supplemental briefing on the scope of Petitioners’ challenge, ECF No. 111,
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`notwithstanding the fact that EPA’s principal brief had asserted the challenge was
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`limited to the XtendiMax registration, ECF No. 48 at 12–13 n.3, and Petitioners
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`did not object to this characterization in their reply brief or at oral argument. See
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`ECF No. 72; Oral Argument Recording (Apr. 21, 2020). Petitioners submitted
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`their supplemental brief less than one month ago, on May 13, 2020, arguing that
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`their Petition for Review covered the separately issued BASF and EID registrations
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`in addition to Monsanto’s XtendiMax registration. See ECF No. 115-1 at 2–3
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`(May 13, 2020).
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`The panel issued its decision just over one week ago. It concluded that the
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`Petition was a challenge to the October 2018 decision document that referenced the
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`upcoming registrations of XtendiMax, Engenia, and FeXapan, and therefore “all
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`three registrations are at issue in the petition.” Nat’l Family Farm Coal. v. U.S.
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`EPA, No. 19-70115, 2020 WL 2901136, at *9 (9th Cir. June 3, 2020). The panel
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`vacated all three registrations. As a result, EID is now unable to sell its FeXapan
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`product. See Declaration of Diego Fonseca (“Fonseca Decl.”), ¶¶ 6, 8, 11-12.
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`Last night, Petitioners filed an Emergency Motion to Enforce This Court’s
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`Vacatur, contending that EPA’s June 8, 2020 response to the panel decision is
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`4
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`unlawful. See ECF 127-1 (June 11, 2020). The relief Petitioners seek in that
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`motion also directly impacts EID. EID seeks its own emergency relief from this
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`Court in order to have party status and the ability to participate in all further
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`aspects of this proceeding, including in the Court’s consideration of the Petitioners’
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`emergency request.
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`ARGUMENT
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`The Court should permit EID to intervene and protect its interests now that
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`the Court has concluded that the EID’s FeXapan registration is part of this case.
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`Federal Rule of Appellate Procedure 15(d) permits intervention in a petition for
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`review proceeding where a proposed intervenor seeks to intervene “within 30 days
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`after the petition for review is filed” and states an adequate “interest” and “grounds
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`for intervention” in the appeal. Fed. R. App. P. 15(d). The Petition for Review,
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`which specified that it related to the “same pesticide product” as Petitioners’ prior
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`action, i.e. XtendiMax, did not provide EID reasonable notice that its FeXapan
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`registration was subject to judicial review. EID has moved promptly – in fewer
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`than ten days – to seek intervention following the panel’s decision. This Court has
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`consistently allowed registrants to intervene in similar cases challenging pesticide
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`registration decisions. E.g., Ctr. for Biological Diversity v. EPA, 847 F.3d 1075,
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`1081 n.3 (9th Cir. 2017); Pollinator Stewardship Council v. EPA, 806 F.3d 520,
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`523 (9th Cir. 2015); Natural Res. Def. Council v. EPA, 735 F.3d 873, 875 (9th Cir.
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`5
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`2013); Ctr. for Food Safety v. EPA, No. 14-73359 (9th Cir. Dec. 11, 2014), ECF
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`No. 12. The Court should do the same here for EID, particularly now that there is
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`an Emergency Motion before the Court that directly implicates EID’s interest.
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`STANDARD FOR INTERVENTION
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`Federal Rule of Appellate Procedure 15(d) does not specify a standard for
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`intervention, but this Court looks to the principles underlying intervention pursuant
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`to Rule 24 of the Federal Rules of Civil Procedure. See Sw. Ctr. for Biological
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`Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001); see also Int’l Union, United
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`Auto., Aerospace, & Agric. Implement Workers of Am., AFL-CIO, Local 283 v.
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`Scofield, 382 U.S. 205, 217 n.10 (1965) (noting that “the policies underlying
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`intervention [stated under Federal Rule of Civil Procedure 24] may be applicable
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`in appellate courts”). The criteria for intervention as a matter of right under Fed. R.
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`Civ. P. 24(a)(2) are:
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`(1) the motion must be timely; (2) the applicant must claim a
`significantly protectable interest relating to the property or transaction
`which is the subject of the action; (3) the applicant must be so situated
`that the disposition of the action may as a practical matter impair or
`impede its ability to protect that interest; and (4) the applicant's
`interest must be inadequately represented by the parties to the action.
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`Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en
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`banc) (internal quotations omitted). This Court has instructed that Rule 24(a)(2) be
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`interpreted “broadly in favor of proposed intervenors” to allow “parties with a
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`practical interest in the outcome of a particular case to intervene.” United States v.
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`6
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`City of L.A., 288 F.3d 391, 397-98 (9th Cir. 2002) (citations omitted).
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`I. EID’S MOTION IS TIMELY UNDER THE CIRCUMSTANCES.
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`This Court can and should excuse the 30-day timeframe in Federal Rule of
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`Appellate Procedure 15(d) under the unique and extraordinary circumstances in
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`this proceeding and grant EID intervenor status. See, e.g., Int’l Union of Operating
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`Eng’rs, Local 18 v. NLRB, 837 F.3d 593, 595-596 (6th Cir. 2016); Zeigler Coal
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`Co. v. Office of Workers’ Comp. Programs, 490 F.3d 609, 610 n.1 (7th Cir. 2007).
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`EID had no reasonable basis to conclude that the petition put its FeXapan
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`registration at issue within the 30-day period, and it acted promptly after the Court
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`vacated its FeXapan registration. Furthermore, EID’s intervention would be timely
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`under the standards governing intervention outside the confines of Rule 15.
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`A. No Filings During The Rule 15(d) 30-Day Window Provided A
`Reasonable Basis For EID To Consider Intervention.
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`The Petition for Review did not mention EID or its FeXapan registration,
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`providing EID with no basis to intervene within Rule 15(d)’s 30-day period. The
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`Court’s order to vacate the FeXapan registration provides that basis now.
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`By its own terms, the Petition appeared to apply only to Monsanto’s
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`XtendiMax registration. The Petition stated that the October 31, 2018 EPA
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`decision it challenged was “intertwined with and extended two earlier registration
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`decisions by EPA over this same pesticide product.” ECF 1-6 at 2 (emphasis
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`added). The “two earlier registration decisions” referred to the Petitioners’ prior
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`7
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`challenge to XtendiMax’s 2016 and 2017 registrations, and Petitioners limited their
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`challenge to the “same pesticide product” – XtendiMax – at issue in Petitioners’
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`earlier litigation in this Court. See supra at 3. It is reasonable to infer that
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`Petitioners intended to challenge the “part” of EPA’s order that applied to
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`XtendiMax. Fed. R. App. P. 15(a)(2)(C). There was no reasonable basis for EID
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`to conclude that it should take action within Rule 15(d)’s 30-day period and move
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`to intervene.
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`Petitioners’ filings within the 30-day window further confirmed that their
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`Petition was only challenging the XtendiMax registration. Specifically, EPA
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`sought a stay soon after the Petition was filed (during a government shutdown).
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`Petitioners filed an opposition on January 15, 2019, well within the 30 day time-
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`frame during which an interested party could have intervened, confirming that only
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`“Monsanto’s dicamba pesticide” and “Monsanto’s XtendiMax” as the subject of
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`the Petition. ECF No. 8 at 2, 6. Petitioners said nothing of EID or FeXapan. See
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`id. An unopposed EPA motion filed on February 18, 2019 further assuaged any
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`doubt that the Petition might be challenging any registration but Monsanto’s by
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`explicitly stating that the “petition, filed on January 11, 2019, challenges EPA’s
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`order . . . granting a conditional approval of pesticide registration for new uses of
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`Movant-Intervenor Monsanto Company’s Xtendimax.” ECF No. 21 ¶ 1. These
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`filings confirmed the plain language of the Petition and gave EID no basis or cause
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`8
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`to seek to intervene at the outset of the case.
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`In addition, the Administrative Record consisted of the documents before the
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`agency in connection with EPA’s Xtendimax approval. ECF 26-2 at 1–2; ECF 34-
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`2 at 1–2. Petitioners did not argue that EPA also needed to compile the complete
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`Administrative Record for the separate FeXapan registration. During briefing,
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`Petitioners mentioned “competitor dicamba varieties approved by EPA for the
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`same uses” in a footnote in their opening brief. ECF No. 35 at 2 n.4 (Aug. 13,
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`2019). EPA argued that this casual reference did not put Engenia or FeXapan
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`within the scope of Petitioners’ challenge. See, e.g., ECF No. 48-1 at 12-13 & n.3
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`(Oct. 15, 2019). Petitioners did not respond in reply or at oral argument.
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`The panel’s request for supplemental briefing on whether Petitioners
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`intended to challenge the FeXapan and Engenia registrations is itself evidence that
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`the Petition did not put EID on notice. If this Court was unsure of whether
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`Petitioners were challenging the FeXapan and Engenia registrations after briefing
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`and oral argument, then EID too can be excused for not being on notice within 30
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`days of the filing of the Petition that its registration was at issue before this Court.
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`It was only on May 13, 2020, in response to this Court’s inquiry that Petitioners
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`explicitly claimed to be challenging EID’s FeXapan registration along with
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`Monsanto’s XtendiMax registration. See ECF No. 115-1 at 2–3.
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`It was not until the panel issued its decision on June 3, 2020, that EID
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`9
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`received clear notice that the Court was putting its FeXapan registration at issue,
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`and that its registration had been vacated, effective immediately, with no
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`opportunity for EID to defend its property interest. The panel issued its decision a
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`little over a week ago, and EID has acted swiftly to intervene. Cf. United Airlines,
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`Inc. v. McDonald, 432 U.S. 385, 395-396 (1977).
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`Denying EID’s intervention would be inequitable. The panel’s belated
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`decision that the Petition implicates EID’s property interest in its FeXapan
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`registration—after the ordinary 30-day period for intervention in Rule 15(d)—
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`raises due process concerns. See Fonseca Decl. ¶¶ 5, 8; Mathews v. Eldridge, 424
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`U.S. 319, 333 (1976). This court has granted intervention in analogous
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`circumstances when a proposed intervenor had a significant interest in the subject
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`of the litigation and “had little reason to anticipate the breadth of the panel’s
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`holding.” See Peruta v. Cty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016).
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`EID’s request to intervene after the 30-day period in Rule 15(d) is
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`reasonable and timely under these unusual and extraordinary circumstances that
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`now include a post-mandate Emergency Motion to Enforce the Court’s Vacatur.
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`B.
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`EID’s Intervention Is Timely Under Intervention Principles.
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`EID’s motion is also timely under the ordinary rules governing intervention.
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`Other than in petition for review cases, this Court “weigh[s] three factors in
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`determining whether a motion to intervene is timely: (1) the stage of the
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`proceeding at which an applicant seeks to intervene; (2) the prejudice to other
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`parties; and (3) the reason for and length of the delay.” United States v. Alisal
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`Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (internal quotation marks omitted).
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`See Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (granting intervention after
`
`panel decision). These factors support EID’s request here.
`
`First, in this unique proceeding, EID’s intervention does not come at a “late
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`stage” of the case. For a petition for review proceeding, this court’s review is the
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`first stage, with the petition filed directly in the court of appeals, and subsequent
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`stages of rehearing and potential further review await.
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`Second, EID’s intervention would not prejudice any party.
`
` Both
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`Respondents and Intervenor-Respondent have indicated they do not oppose EID’s
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`intervention and filed supplemental briefs arguing that EID was not on notice that
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`the FeXapan registration might be at issue. See ECF No. 116 at 9. Furthermore, it
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`is Petitioners who insisted in their supplemental briefing that EID’s registration
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`was at issue in this case. Having flagged EID for this case last month, they cannot
`
`be surprised or prejudiced by EID’s participation.
`
`Third, there is no “delay” – EID is seeking intervention within ten days of
`
`learning its property interest has been vacated by the Court. See Officers for
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`Justice v. Civil Serv. Comm’n of City & Cty. of San Francisco, 934 F.2d 1092,
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`1095 (9th Cir. 1991). As explained above, EID lacked reasonable notice that its
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 18 of 25
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`FeXapan registration was at issue until the panel issued its decision. EID acted
`
`promptly and expeditiously when it received notice from the panel decision.
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`II. EID QUALIFIES FOR INTERVENTION UNDER ALL GOVERNING
`STANDARDS.
`
`EID deserves to intervene in this appeal. As outlined above, this Court looks
`
`to the principles underlying intervention pursuant to Rule 24 of the Federal Rules
`
`of Civil Procedure, which includes both intervention of right and permissive
`
`intervention. See supra at 6. EID qualifies under either set of standards, as
`
`explained below.
`
`A. EID Satisfies The Standards To Intervene As Of Right.
`
`In addition to the issue of timeliness discussed at length in Part I supra,
`
`intervention as of right under Rule 24(a) is warranted if the proposed intervenor
`
`demonstrates that (1) “it has a significant protectable interest relating to. . . the
`
`subject of the action;” (2) “the disposition of the action may, as a practical matter,
`
`impair or impede the applicant’s ability to protect its interest;” and (3) “the existing
`
`parties may not adequately represent the applicant’s interest.” Chamness v.
`
`Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (internal citation omitted). This Court
`
`has instructed that Rule 24(a)(2) be interpreted “broadly in favor of proposed
`
`intervenors” to allow “parties with a practical interest in the outcome of a
`
`particular case to intervene.” United States v. City of L.A., 288 F.3d 391, 397-98
`
`(9th Cir. 2002) (citations omitted).
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 19 of 25
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`EID satisfies these requirements. First, as the sole owner of the FeXapan
`
`registration vacated by this Court’s June 3, 2020 opinion, EID has a significantly
`
`protectable interest in the outcome of this case. Fonseca Decl. at ¶¶ 5, 8. This
`
`Court has ruled that it “[i]s generally enough [to support intervention] that the
`
`interest [asserted] is protectable under some law, and that there is a relationship
`
`between the legally protected interest and the claims at issue.” Berg, 268 F.3d at
`
`818 (citation omitted). EID’s registration is a license protected by law in which
`
`EID has a property interest. See, e.g., Memorandum and Order at 4, Pesticide
`
`Action Network of N. Am. v. EPA, No. 3:08-cv-01814-MHP (“PANNA”) (N.D. Cal.
`
`July 8, 2008), Dkt. No. 43 (FIFRA registrations “are essentially government
`
`licenses to produce, distribute and sell pesticides,” and they “constitute property”);
`
`cf. Sierra Club v. EPA, 995 F.2d 1478, 1485-86 (9th Cir. 1993) (holders of NPDES
`
`permits issued under the Clean Water Act have a protectable interest supporting
`
`intervention in cases challenging the permits), abrogated on other grounds by
`
`Wilderness Soc’y, 630 F.3d 1173 (9th Cir. 2011); 5 U.S.C. § 551(8) (“license”
`
`includes “the whole or a part of an agency permit, certificate, approval,
`
`registration . . . or other form of permission”).
`
`Second, the “disposition of the action” has impaired EID’s “ability to protect
`
`its interest” in the registration of FeXapan. Chamness, 722 F.3d at 1121. The
`
`Panel’s vacatur of EID’s registration deprives EID of its property, denies EID the
`
`13
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`
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 20 of 25
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`immediate benefit of product sales, and jeopardizes its investment in FeXapan.
`
`See Fonseca Decl. ¶¶ 12-13. The risk of such consequences entitles EID to
`
`intervene. See Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893,
`
`898 (9th Cir. 2011) (“‘If an absentee would be substantially affected in a practical
`
`sense by the determination made in an action, he should, as a general rule, be
`
`entitled to intervene.’”) (citing Fed. R. Civ. P. 24 advisory committee’s note).
`
`Third, the existing parties do not adequately protect EID’s interests.
`
`Intervention is favored where representation of a proposed intervenor by a named
`
`party “may be” inadequate. Trbovich v. United Mine Workers of America, 404 U.S.
`
`528, 538 n.10 (1972) (internal quotations omitted). The burden of showing
`
`inadequacy is “minimal.” Id.; see also Forest Conservation Council v. U.S. Forest
`
`Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (“[the] burden in showing inadequate
`
`representation is minimal: it is sufficient to show that representation may be
`
`inadequate”), abrogated on other grounds by Wilderness Soc’y, 630 F.3d 1173 (9th
`
`Cir. 2011).
`
`No party currently in this litigation will represent adequately EID’s interests.
`
`Petitioners, who seek to invalidate EID’s registration, plainly are not situated to
`
`represent EID’s interests. See Charles Alan Wright et al., 7C Federal Practice &
`
`Procedure § 1909 (3d ed.) (explaining that parties whose interests “are adverse to
`
`the absentee” cannot adequately represent that absentee). Nor is Monsanto well-
`
`14
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 21 of 25
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`suited to the task. As the owner of a competing product, Monsanto does not have
`
`the same incentive to explain why the Panel should not have addressed EID’s
`
`registration. And EPA’s “general interest” in seeing its decision upheld “does not
`
`mean [the parties’] particular interests coincide so that representation by the
`
`agency alone is justified.” Am. Horse Prot. Ass’n v. Veneman, 200 F.R.D. 153, 159
`
`(D.D.C. 2001). Courts consistently have held that government agencies do not
`
`represent adequately the interests of private intervenors like EID. See, e.g., Fund
`
`for Animals, Inc. v. Norton, 322 F.3d 728, 736-37 (D.C. Cir. 2003) (“[W]e have
`
`often concluded that governmental entities do not adequately represent the interests
`
`of aspiring intervenors.”) (collecting cases); see also United Farm Workers v. EPA,
`
`No. 07-cv-3950, 2008 WL 3929140, at *2 (N.D. Cal. Aug. 26, 2008) (“Courts have
`
`recognized that . . . private companies like [the pesticide registrant] have a more
`
`parochial and financial interest not shared by the EPA.”).
`
`EID meets each of Rule 24’s standards and should be granted intervention.
`
`B. Alternatively, The Court Should Grant Permissive Intervention.
`
`In the alternative, EID seeks leave for permissive intervention. Fed. R. Civ.
`
`P. 24(b)(1) authorizes permissive intervention when, upon the filing of a timely
`
`motion, the movant’s claim or defense, and the main action, have a common
`
`question of law or fact. See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094,
`
`1108 (9th Cir. 2002) (“[A]ll that is necessary for permissive intervention is that
`
`15
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`
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 22 of 25
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`intervenor’s claim or defense and the main action have a question of law or fact in
`
`common” as the rule “plainly dispenses with” the other requirements of
`
`intervention as of right), abrogated on other grounds by Wilderness Soc’y v. U.S.
`
`Forest Serv., 630 F.3d 1173 (9th Cir. 2011). Permissive intervention does not
`
`require a showing of inadequacy of representation or a direct interest in the subject
`
`matter of the action.
`
`EID easily satisfies these requirements. As explained above, EID’s motion
`
`will not cause undue delay or prejudice to the parties. Furthermore, EID seeks to
`
`defend the legality of the FeXapan registration, which the panel decision has linked
`
`with the XtendiMax registration as the focus of this case, thus providing a
`
`“common question of law.” EID thus qualifies for permissive intervention as well.
`
`
`
`CONCLUSION
`
`EID requests that this Court grant this motion to intervene, and also provide
`
`sufficient time for EID to assess Petitioners’ recently filed emergency motion.
`
`
`
`
`
`16
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`
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 23 of 25
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`June 12, 2020
`
`
`
`Respectfully submitted,
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`David Y. Chung
`Amanda Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`Intervenor-
`Counsel
`for Proposed
`Respondent E.I. du Pont de Nemours and
`Company
`
`17
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`Case: 19-70115, 06/12/2020, ID: 11720295, DktEntry: 129-1, Page 24 of 25
`
`CERTIF
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