Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 1 of 29
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`No. 19-70115
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
`
`
`
`Petitioners,
`
`v.
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`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
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`Respondents,
`
`and
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`MONSANTO COMPANY,
`
`Intervenor-Respondent.
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`
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`
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`
`BASF CORPORATION’S EMERGENCY MOTION TO INTERVENE
`UNDER FEDERAL RULE OF APPELLATE PROCEDURE 15(D) AND
`NINTH CIRCUIT RULE 27-3
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
`
`Counsel for Proposed Intervenor BASF Corporation
`
`
`
`
`
`
`
`
`
`
`
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`No. 19-70115
`
`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,
`
`and
`
`MONSANTO COMPANY,
`
`Intervenor-Respondent.
`
`
`
`
`
`
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`
`BASF CORPORATION’S EMERGENCY MOTION TO INTERVENE
`UNDER FEDERAL RULE OF APPELLATE PROCEDURE 15(D) AND
`NINTH CIRCUIT RULE 27-3
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
`
`Counsel for Proposed Intervenor BASF Corporation
`
`
`
`
`
`
`
`
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 2 of 29
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Federal Rule of Civil Procedure 7.1 and Federal Rule of
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`Appellate Procedure 26.1, counsel for Proposed-Intervenor BASF Corporation
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`(“BASF”) certifies that BASF Corporation is a wholly owned subsidiary of BASF
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`Americas Corporation. BASF Americas Corporation is a wholly owned subsidiary
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`of BASFIN Corporation. BASF Corporation, BASF Americas Corporation, and
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`BASFIN Corporation are all Delaware corporations. BASFIN Corporation is a
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`majority owned subsidiary of BASF USA Holding LLC, a Delaware limited
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`liability company. BASF USA Holding LLC is a wholly owned subsidiary of
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`BASF Nederland BV, a Dutch limited liability company, which in turn is a wholly
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`owned subsidiary of BASF SE (Societas Europaea – “SE”), a publicly traded
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`European Company. BASF Corporation, BASF Americas Corporation, BASFIN
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`Corporation, BASF USA Holding LLC and BASF Nederland BV are not publicly
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`held. No publicly held corporation owns 10% or more of BASF’s stock.
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`June 12, 2020
`
`
`/s/ Kathryn E. Szmuszkovicz
`Kathryn E. Szmuszkovicz
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6037
`kes@bdlaw.com
`
`Counsel for Proposed Intervenor BASF
`Corporation
`
`
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 3 of 29
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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 and addresses of the attorneys for the parties.
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`Counsel for Proposed Intervenor BASF Corporation
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`Counsel for Petitioners
`
`George A. Kimbrell
`Sylvia Shih-Yau Wu
`Amy van Saun
`CENTER FOR FOOD SAFETY
`2009 NE Alberta St., Suite 207
`Portland, OR 97211
`gkimbrell@centerforfoodsafety.org
`swu@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
`(971) 271-7372
`
`Counsel for Respondents
`
`Stephanie M. Parent
`CENTER FOR BIOLOGICAL
`DIVERSITY
`PO Box 11374
`Portland, OR 97211
`(971) 717-6404
`SParent@biologicaldiversity.org
`
`
`Sarah A. Buckley
`J. Brett Grosko
`UNITED STATES DEPARTMENT OF JUSTICE
`ENVIRONMENT & NATURAL RESOURCES DIVISION
`P.O. Box 7611
`Washington, D.C. 20044
`(202) 616-7554 (Buckley)
`(202) 305-0342 (Grosko)
`sarah.buckley@usdoj.gov
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`brett.grosko@usdoj.gov
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`Counsel for Intervenor-Respondent
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`Philip J. Perry
`Richard P. Bress
`Stacey L. VanBelleghem
`Andrew D. Prins
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
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`2. Facts showing the existence and nature of the emergency.
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`As this emergency motion explains in full, the panel decision vacated
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`EPA’s registration of Engenia issued to BASF. Neither the petition for review, nor
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`subsequent developments in this litigation, put BASF on notice that its Engenia
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`registration was at issue because Petitioners’ challenge was to the registration of a
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`different pesticide, XtendiMax, which EPA registered in a separate agency action.
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`The panel decision ordered the mandate issued immediately, which has forced
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`BASF to act on a tremendously expedited basis to protect its rights with respect to
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`its Engenia product, as well as the rights of farmers that depend on that product to
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`grow their crops.
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`Exacerbating the need for expedited action by BASF to protect its rights,
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`Petitioners have now moved to recall the mandate and seek to hold EPA in
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`contempt for its actions taken in the wake of the panel’s extraordinary decision.
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`The mandate issued the same day as the decision. This left BASF and farmers that
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`use Engenia in a state of flux—as it did for Monsanto and Corteva, whose
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`registrations were also vacated in this decision. EPA attempted to address this real
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`problem by issuing an order restricting the use of existing stocks by growers and
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`certified applicators to those stocks that were in their possession as of the date of
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`the mandate issuance, but only through July 31, 2020, and only consistent with the
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`label restrictions associated with the now-vacated product registrations. Petitioners
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`now seek to invalidate that effort to address the effects of the panel’s decision to
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`issue the mandate immediately. That action directly affects BASF’s interests in the
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`use of its Engenia product.
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`Petitioners have sought expedited consideration of their motions, and BASF
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`similarly needs expedited consideration of its intervention motion to allow it to
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`participate in these proceedings.
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`3. Why the motion could not have been filed earlier.
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`
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`As explained in full in the accompanying motion, BASF did not have notice
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`that its rights in its Engenia registration were at issue in this litigation until the
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`panel decision on June 3, 2020. BASF is filing this motion within ten days of that
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`decision. And it is filing immediately after Petitioners filed their motion to recall
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`the mandate and seek contempt.
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`4. When and how BASF gave notice to, and served the motion on, counsel for the
`other parties and the other parties’ positions on the motion.
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`Counsel for BASF notified counsel for Petitioners of BASF’s intent to file
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`this motion on June 11, 2020 by e-mail. Petitioners oppose this motion.
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`Counsel for BASF notified counsel for Respondents of BASF’s intent to file
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`this motion on June 11, 2020 by e-mail. Respondents do not oppose this motion.
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`Counsel for BASF notified counsel for Intervenor-Respondent Monsanto of
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`BASF’s intent to file this motion on June 11, 2020 by e-mail. Monsanto consents
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`to this motion.
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`Service will be effected by electronic service through the CM/ECF system.
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`5. Whether the relief sought was first sought in the agency, and if not, why the
`motion should not be remanded or denied.
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`
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`This motion seeks relief that is not available before the EPA: to intervene in
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`a petition for review proceeding before this Court.
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`6. Proposed briefing schedule.
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`
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`BASF proposes the following schedule for briefing this motion: any
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`opposition to be filed on Tuesday, June 16, 2020, and any reply to be filed on
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`Wednesday, June 17, 2020.
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`June 12, 2020
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`
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`
`
`/s/ Kathryn E. Szmuszkovicz
`
`Kathryn E. Szmuszkovicz
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6037
`kes@bdlaw.com
`
`Counsel for Proposed Intervenor BASF
`Corporation
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`v
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 7 of 29
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`EMERGENCY MOTION TO INTERVENE
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`
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`The panel issued a decision with broad reach. Petitioners sought review of
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`the EPA’s 2018 registration of a single pesticide—XtendiMax—made by a single
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`manufacturer—Monsanto Corporation. The panel decision nonetheless reached
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`not just that registration but also the separate registrations of two different
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`pesticides—Engenia and FeXapan—made by two different manufacturers—BASF
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`Corporation and Corteva—neither of whom were parties to this case. In the same
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`opinion that faulted Respondents’ risk-benefit analysis, the panel chose to vacate
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`these three registrations nationwide despite the undisputed harm doing so will
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`cause farmers across this country. And ensuring it would be exceedingly difficult
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`for the non-party manufacturers to protect their rights after the panel decision
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`brought them into the case, the panel ordered the mandate to issue immediately.
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`This decision left the manufacturers, and the growers who use their products, in a
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`state of uncertainty in the midst of the growing season, and so EPA issued an order
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`implementing the mandate that addressed the use of existing stocks. Petitioners
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`yesterday moved to recall that mandate, vacate EPA’s order, and hold EPA in
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`contempt. BASF now respectfully moves to intervene in this appeal under
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`FRAP 15(d) in support of Respondent to protect its rights.
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`STATEMENT
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`In this appeal, Petitioners challenged EPA’s 2018 registration of Monsanto’s
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`1
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`XtendiMax pesticide. EPA registers pesticide products under the Federal
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`Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. § 136a(a). “No
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`person may distribute or sell any pesticide product that is not registered under the
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`Act.” 40 C.F.R. § 152.15; see also 7 U.S.C. § 136j(a)(1)(A). A “registration” is a
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`“license that allows a pesticide product to be distributed or sold for specific uses
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`under specified terms and conditions.” Pesticides; Procedural Regulations for
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`Registration Review, 71 Fed. Reg. 45,720, 45,720 (Aug. 9, 2006); see Reckitt
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`Benckiser Inc. v. EPA, 613 F.3d 1131, 1133 (D.C. Cir. 2010). A registration is
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`issued to a specific registrant, for a specific formula, packaging, and label. See 40
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`C.F.R. § 152.3 (defining “[p]esticide product” as “a pesticide in the particular form
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`(including composition, packaging, and labeling) in which the pesticide is, or is
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`intended to be, distributed or sold”); 7 U.S.C. § 136a(c)(1)(C).
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`Petitioners’ challenge began in 2016. That year, EPA issued a registration
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`for an agricultural herbicide called XtendiMax for post-emergent use—on crops
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`that have emerged but are not ready to be harvested—on dicamba-tolerant soybean
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`and cotton. After Petitioners petitioned this Court for review of the 2016
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`registration, EPA amended the registration in 2017, and Petitioners amended their
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`petition to seek review of the amended order. See Case No. 17-70196, ECF Nos.
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`62, 68. The 2016 registration expired by its own terms, and EPA issued a new
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`registration for XtendiMax on November 1, 2018. This Court then dismissed
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`2
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`Petitioners’ challenge as moot. See Nat’l Family Farm Coal. v. U.S. EPA, 747 F.
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`App’x 646, 647-648 (9th Cir. 2019). The Court’s dismissal order directed the
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`Clerk to expedite briefing and argument if Petitioners challenged “the 2018
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`registration decision of the EPA.” Id. at 648.
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`Petitioners filed this petition for review on January 11, 2019, continuing
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`their challenge to the sole product they had previously challenged—XtendiMax.
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`They cited the regulatory docket that had been opened for Monsanto’s XtendiMax
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`registration (EPA-HQ-OPP-2016-0187-0968) and their prior petition for review
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`that had challenged the 2016 XtendiMax registration. ECF No. 1-6 at 1. And they
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`described their challenge as one to a document 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 intervened. ECF No. 11. EPA had issued registrations for
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`BASF’s Engenia on November 2 and for Corteva’s FeXapan on November 5. The
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`petition did not mention these other companies, or their products and registrations.
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`After argument this April, the panel directed supplemental briefing on the
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`scope of Petitioners’ challenge. See ECF No. 111. Responding to a footnote in
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`Petitioners’ brief, Respondents’ principal brief stated that the challenge was limited
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`to the XtendiMax registration. ECF No. 48 at 12–13 n. 3. Petitioners did not
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`respond—not in their reply brief, and not at oral argument. See ECF No. 72 (reply
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`brief); ECF No. 110 (oral argument recording); see also ECF No. 112 at 9–10
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`(EPA’s supplemental brief noting these omissions, and arguing that Petitioners
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`waived any argument that the petition encompasses BASF’s Engenia registration).
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`In response to the supplemental briefing order, Petitioners argued—for the first
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`time—that the petition covered the separate Engenia and Corteva registrations in
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`addition to Monsanto’s XtendiMax registration. ECF No. 115-1 at 2–3.
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`Nine days ago, the panel issued its decision. It concluded that the petition
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`was a challenge to an earlier-in-time decision document on which the order
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`extending the XtendiMax registration—and separate orders extending the Engenia
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`and FeXapan registrations—had been based. It thus held that “all three
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`registrations are at issue in the petition.” Nat’l Family Farm Coal. v. U.S. EPA, No.
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`19-70115, 2020 WL 2901136, at *9 (9th Cir. June 3, 2020). The panel vacated
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`that decision document and the three registrations, acknowledging the significant
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`hardship this choice would inflict on farmers that use these pesticides, including
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`BASF’s Engenia. See id. at *19 (noting “the difficulties these growers may have
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`in finding effective and legal herbicides to protect their DT crops if we grant
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`vacatur . . . through no fault of their own”); see also Key Decl, Ex. A at ¶¶ 11–15
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`(discussing effects on growers and BASF’s manufacturing and sales).
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`The panel ordered the mandate to issue immediately. See ECF No. 125.
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`Consistent with the mandate, EPA issued an order addressing existing stocks of
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`products with vacated registrations. ECF No. 127-3. Yesterday, Petitioners filed a
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`motion to recall the mandate, for an order instructing EPA to revoke the existing
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`stocks order, and to hold EPA in contempt. See ECF No.127.
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`ARGUMENT
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`Now that the panel has placed BASF’s Engenia registration at issue, this
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`Court should permit BASF to intervene and protect its interests. Rule 15(d)
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`permits intervention in a proceeding for review of an agency order where sought
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`“within 30 days after the petition for review is filed” and where the intervenor
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`states an adequate “interest” and “grounds for intervention.” Fed. R. App. P. 15(d).
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`The petition did not put BASF on notice that its November 2 registration was at
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`issue, and BASF has moved expeditiously to seek intervention in light of the
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`panel’s decision. This Court routinely finds that regulated parties meet this
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`standard where the challenged regulatory action implicates their interests. See, e.g.,
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`Ctr. for Food Safety v. U.S. EPA, No. 14-73359 (9th Cir. Dec. 11, 2014), ECF No.
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`12 (granting motion to intervene of Dow AgroSciences to defend its pesticide
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`registration); Sierra Club v. U.S. EPA, 762 F.3d 971, 976 (9th Cir. 2014)
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`(intervention granted to applicant of challenged EPA permit); Akiak Native Cmty. v.
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`U.S. EPA, 625 F.3d 1162, 1165 (9th Cir. 2010) (same).
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`I. GOOD CAUSE EXISTS TO PERMIT INTERVENTION AFTER THE
`ORDINARY PERIOD SPECIFIED IN RULE 15(D).
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`This Court should allow BASF to intervene though the ordinary time frame
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`provided in FRAP 15(d) has passed. Under that rule, a motion for leave to
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`intervene in a proceeding to review agency action “must be filed within 30 days
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`after the petition for review is filed.” Fed. R. App. P. 15(d). This “deadline is a
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`claim-processing rule,” one that this Court “can excuse.” Int’l Union of Operating
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`Eng’rs, Local 18 v. NLRB, 837 F.3d 593, 595-596 (6th Cir. 2016) (listing reasons
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`such as “waive[r],” “forfeiture,” “equitable” considerations, and whether no party
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`“oppose[d]” or would be “prejudice[d]” by the intervention); Zeigler Coal Co. v.
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`Office of Workers’ Comp. Programs, 490 F.3d 609, 610 n.1 (7th Cir. 2007)
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`(holding that a coal company’s surety showed cause to intervene after the 30-day
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`period because the company’s liquidation in bankruptcy meant it lacked an interest
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`in the matter and would not protect the surety’s rights).
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`Intervention past the 30-day deadline is warranted here. First, BASF did not
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`have notice that the petition put its Engenia registration at issue within the 30-day
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`period, and it acted expeditiously after the panel decision vacated its Engenia
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`registration. Second, intervention would be timely under the ordinary rules.
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`A. Good Cause Exists To Permit Intervention Because BASF Did
`Not Have Notice That The Petition For Review Put Its Engenia
`Registration At Issue Until The Panel Decision.
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`Because the petition for review did not refer to BASF’s Engenia registration,
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`BASF had no basis to intervene within Rule 15(d)’s 30-day period, and it should
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`be permitted to do so now. The petition did not reference the registration for
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`BASF’s Engenia pesticide. Read fairly, it referred only to the XtendiMax
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`6
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`registration. It referred to the regulatory docket that EPA opened for the 2016
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`XtendiMax registration and continued for the 2018 XtendiMax registration. And it
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`stated that the challenge was limited to the same pesticide product at issue in
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`Petitioners’ earlier litigation in this Court, that is, XtendiMax. See supra at 3.
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`Both during and after that 30-day intervention period, Petitioners’ filings
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`repeatedly confirmed that their petition was limited to challenging the XtendiMax
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`registration. For example, just days after the petition was filed, EPA sought a stay.
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`When Petitioners opposed, they identified only “Monsanto’s dicamba pesticide”
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`and “Monsanto’s XtendiMax” as the subject of the petition. ECF No. 8 at 2, 6.
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`Petitioners did not mention BASF or Engenia. See id. Shortly thereafter, all
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`parties jointly confirmed that the “petition, filed on January 11, 2019, challenges
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`EPA’s order . . . granting a conditional approval of pesticide registration for new
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`uses of Movant-Intervenor Monsanto Company’s Xtendimax.” ECF No. 21 ¶ 1;
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`see also ECF No. 77-2, at 4 (“the pesticide registration issues in this petition
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`involve . . . EPA’s decision to continue the registration of XtendiMax until 2020.”).
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`EPA proceeded in reliance on this description of the petition. It repeatedly
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`made clear that the Administrative Record it was compiling consisted of the
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`documents considered in connection with EPA’s XtendiMax approval. ECF 26-2
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`at 1–2 (certifying administrative record consisting of documents relating to EPA’s
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`November 1 XtendiMax registration); ECF 34-2 at 1–2 (same). Petitioners did not
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`contest the scope of the Administrative Record, and have not argued that EPA also
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`needed to compile the complete Administrative Record for the separate Engenia
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`registration. Because the Administrative Record for Engenia was never produced
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`to the Court, the panel did not have before it a dozen studies of the spray drift and
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`volatilization characteristics of the Engenia formulation. See Kay Decl. ¶ 7 &
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`Attach. A. These materials would be required to be included in the Administrative
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`Record in any challenge to the Engenia registration.
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`The panel’s actions confirm that Petitioners had not clearly demonstrated
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`that they meant to challenge BASF’s Engenia registration. Petitioners mentioned
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`Engenia in a cursory footnote in their opening brief, filed long after the 30-day
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`period for intervention. See ECF No. 35 at 2 n.4. Respondents argued that this
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`passing mention did not put Engenia within the scope of Petitioners’ challenge.
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`ECF No. 48-1 at 12-13 & n.3. Petitioners challenging agency orders bear the
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`burden to “specify” each order “or part thereof” they are challenging. Fed. R. App.
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`P. 15(a)(2)(C); see Gottesman v. U.S. INS, 33 F.3d 383, 388 (4th Cir. 1994)
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`(specification requirement is jurisdictional). And yet Petitioners did not show that
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`they had met this burden, not in their reply brief or their presentation at oral
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`argument, both of which were silent in response to the EPA’s argument.
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`It was precisely this lack of clarity that led the panel to issue a supplemental
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`briefing order. That order observed, “[t]he briefing now before this Court does
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`little more than to indicate disagreement between the parties” as to whether the
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`Engenia and FeXapan registrations were implicated. ECF No. 111 at 3. Then, for
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`the first time, Petitioners’ supplemental brief argued that they had intended to
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`challenge BASF’s Engenia registration along with Monsanto’s XtendiMax
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`registration. See ECF No. 115-1 at 2–3.
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`It was thus not until the panel decision three weeks later that BASF
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`simultaneously received notice that its Engenia registration was at issue, in the
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`portion of the decision ruling on the scope of Petitioners’ challenge, and that its
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`registration was no more, in the portion of decision vacating that registration and
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`ordering the mandate to issue immediately. The panel held that the petition for
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`review included the registration for BASF’s Engenia because the petition noted
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`that the EPA decision document at issue “was ‘intertwined with and extended two
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`earlier registration decisions by EPA over this same pesticide product.’” Nat’l
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`Family Farm Coal., 2020 WL 2901136, at *8 (quoting ECF No. 1-6 at 2). The
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`panel inferred that this reference to the EPA decision document swept in the
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`registrations for BASF’s Engenia and Corteva’s FeXapan because that document
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`announced EPA’s intent to amend those registrations. It reached this conclusion
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`even though that document was not the final agency action as to Engenia’s
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`registration; that required a separate action taken on November 2. See supra at 3.
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`The panel’s conclusion that it was satisfied that the petition encompassed
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`9
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 16 of 29
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`BASF’s Engenia registration—after supplemental briefing by the parties—says
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`nothing about whether BASF had notice before the panel reached that conclusion.
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`In the same sentence the panel quoted, the petition made explicit that Petitioners
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`were challenging only the “same pesticide product” its earlier petition had
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`challenged: XtendiMax. ECF No. 1-6 at 2. Engenia was not at issue in that
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`litigation. See ECF No. 115-1 at 6 (Petitioners conceding that the earlier petition
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`“was limited to Xtendimax”); Case No. 17-70196, ECF Nos. 1-5, 1-6, 62, 68.
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`Petitioners’ statement that they challenged an action that was “intertwined
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`with and extended two earlier registration decisions by EPA over this same
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`pesticide product” cannot be fairly read to have put BASF on notice that
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`Petitioners’ challenge also extended to the Engenia registration. And, as explained,
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`the petition expressly challenged an order it described as having “extended two
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`earlier registration decisions . . . over this same pesticide product” that were
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`“challenged in this Court.” ECF No. 1-6 at 2 (emphasis added). Those earlier
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`registrations were for XtendiMax, and the earlier case in this Court challenged
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`those XtendiMax registrations. See supra at 3. Engenia was not at issue in those
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`registrations, or those cases, and BASF had no reason to think that it was suddenly
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`put at issue in this continuation of those earlier cases. While the panel viewed its
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`expansive interpretation as consistent with one sentence in a footnote of Petitioners’
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`opening brief, there is no reason BASF should have drawn that same conclusion
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`10
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 17 of 29
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`given the scope of the petition for review itself, and given that the panel itself
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`required supplemental briefing to reach that conclusion.
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`BASF has acted expeditiously since the panel decision. Cf. United Airlines,
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`Inc. v. McDonald, 432 U.S. 385, 395-396 (1977) (noting there is good cause to
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`allow a late motion to intervene when “in view of all the circumstances the
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`intervenor acted promptly” after the change that gave rise to the intervenor’s desire
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`to participate in the litigation as a party). The panel issued its decision just nine
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`days ago. And while it would be unreasonable to hold that a potential intervenor
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`must read every filing on a docket even when the petition itself does not implicate
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`its interests, even if Petitioners’ supplemental brief were deemed to put BASF on
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`notice, it is seeking to intervene within 30 days of that filing.
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`Not permitting BASF to intervene when BASF’s substantial interests are at
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`stake, would be inequitable. The panel’s late-breaking decision reading the
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`petition to include BASF’s Engenia registration—after the ordinary 30-day period
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`for intervention in Rule 15(d)—raises due process concerns. See Mathews v.
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`Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due process
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`is the opportunity to be heard at a meaningful time and in a meaningful manner.”
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`(internal quotation marks omitted)). As the owner of the Engenia registration,
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`BASF has a property interest in that registration. See Ctr. for Biological Diversity
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`v. U.S. EPA, 847 F.3d 1075, 1085 (9th Cir. 2017) (“FIFRA establishes
`
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`11
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 18 of 29
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`comprehensive procedures for the EPA’s . . . cancellation of registration of
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`pesticide[s].”); Indus. Safety Equip. Ass’n v. EPA, 837 F.2d 1115, 1122 (D.C. Cir.
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`1988) (“There is no question that appellants possess cognizable property interests
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`in their respirator certifications.”). And yet that registration has been vacated
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`without notice to BASF and without its participation in this case.
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`For related reasons, courts generally treat parties whose property rights may
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`be harmed as necessary parties who should be joined in the litigation. See, e.g.,
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`Lalli v. Lalli, 439 U.S. 259, 270 (1978) (plurality op.) (“Our procedural statutes
`
`and the Due Process Clause mandate notice and opportunity to be heard to all
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`necessary parties.”); see also Dawavendewa v. Salt River Project Agric.
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`Improvement & Power Dist., 276 F.3d 1150, 1155 (9th Cir. 2002) (explaining that
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`whether a decision will “impair or impede its ability to protect that interest” is
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`relevant to whether a party is necessary). Yet neither the panel nor the parties took
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`any steps to ensure that BASF would be joined in this appeal.
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`Not permitting BASF to intervene after Petitioners’ new motion for further
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`extraordinary relief would exacerbate the due process problem. Petitioners now
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`ask this Court to direct EPA’s activities post-vacatur and to invalidate EPA’s
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`existing stocks order. That requested relief directly affects BASF’s interests.
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`Ruling on Petitioners’ request without BASF’s participation would compound the
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`
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`12
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 19 of 29
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`due process injury that BASF suffered from the panel’s decision.1 For all of these
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`reasons, there is good cause to permit BASF to intervene after the 30-day period of
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`Rule 15(d).
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`B.
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`BASF’s Intervention Is Timely Under The General Standard.
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`Even if the Court finds that BASF had adequate notice that the petition put
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`its Engenia registration at issue, the Court should still excuse the 30-day deadline
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`because this motion would be timely under the ordinary rules. Outside of the
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`administrative review context, this Court “weigh[s] three factors in determining
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`whether a motion to intervene is timely: (1) the stage of the proceeding at which an
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`applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason
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`for and length of the delay.” United States v. Alisal Water Corp., 370 F.3d 915,
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`921 (9th Cir. 2004) (internal quotation marks omitted). Applying these factors,
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`this Court has granted a motion to intervene in circumstances identical to this
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`one—i.e., after the issuance of a panel decision, and for the purpose of pursuing
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`panel rehearing and rehearing en banc. See Day v. Apoliona, 505 F.3d 963, 965
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`(9th Cir. 2007). Because each of the three factors weighs in BASF’s favor, the
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`
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`1 Indeed, Petitioners’ motion to recall appears to attempt an end-run around
`the jurisdictional requirement that challenges to an EPA order under FIFRA issued
`without a hearing—like the existing stocks order here—be filed in district court.
`See 7 U.S.C. § 136n(a); 5 U.S.C. § 702. Had Petitioners initiated a new challenge
`to this order in district court, BASF could have timely intervened.
`
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`13
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 20 of 29
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`Court should do the same here.
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`First, although the panel has issued a decision, BASF’s intervention does
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`not come at a late stage of the case. The petition for review at issue in this case
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`was filed directly in the court of appeals. There was no earlier district court phase
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`of the litigation. This is thus not the ordinary case in which a court deems
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`intervention untimely, where intervention after an appellate opinion indicates that
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`“none was sought in the district court.” Peruta v. County of San Diego, 771 F.3d
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`570, 574 (9th Cir. 2014) (internal quotation marks omitted). Moreover, Petitioners’
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`motion to recall the mandate and to hold EPA in contempt for its existing stocks
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`order presents a natural opportunity for BASF’s intervention in this case.
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`Petitioners have now asked the panel to recall its mandate to address an order that
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`directly affects BASF’s interests. BASF seeks to participate in the Court’s
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`decisionmaking process with respect to the Petitioners’ request.
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`Second, allowing BASF to intervene would not prejudice any party.
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`Respondents’ and Intervenor-Respondents’ supplemental briefs argued that BASF
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`was not on notice that the Engenia registration might be at issue and recognized
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`that BASF would have intervened if it were on notice. See ECF No. 116 at 9
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`(Monsanto urging the panel not to read the petition to cover BASF’s Engenia
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`registration because to do so “would be profoundly unfair to . . . BASF, which
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`lacked notice that [its] registration[ ] w[as] at stake and did not intervene to protect
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`14
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`Case: 19-70115, 06/12/2020, ID: 11720442, DktEntry: 130-1, Page 21 of 29
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`[its] rights”); ECF No. 112 at 8-9 (similar statement from EPA).
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`Third, BASF has not delayed in filing its motion for intervention. “In
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`analyzing timeliness . . . the focus is on the date the person attempting to intervene
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`should have been aware his interest[s] would no longer be protected adequately by
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`the parties.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San
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`Francisco, 934 F.2d 1092, 1095 (9th Cir. 1991) (internal quotation marks omitted).
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`As explained, see supra at 9–10, BASF lacked notice until the panel issued its
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`decision. BASF filed this motion virtually immediately after that decision. In any
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`event, “mere lapse of time, without more, is not necessarily a bar to intervention.”
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`Day, 505 F.3d at 965 (quoting Alisal, 370 F.3d at 921) (deeming intervention
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`motion filed two years after case began timely); see also Smith v. Los Angeles
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`Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir. 2016) (twenty years).
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`II. BASF MEETS RULE 15(D)’S OTHER REQUIREMENTS.
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`Allowing BASF to intervene in this appeal is appro
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