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`Case: 19-70115, 06/16/2020, ID: 11724280, DktEntry: 149-1, Page 1 of 7
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`Oral Argument Held on April 21, 2020
`No. 19-70115
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`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
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`NATIONAL FAMILY FARM COALITION, et al.,
`Petitioners,
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`v.
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`U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents,
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`and
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`MONSANTO COMPANY,
`Intervenor-Respondent.
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`On Petition for Review of Agency Action
`of the United States Environmental Protection Agency
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`MOTION OF AMERICAN FARM BUREAU FEDERATION, AMERICAN
`SOYBEAN ASSOCIATION, NATIONAL COTTON COUNCIL OF
`AMERICA, NATIONAL ASSOCIATION OF WHEAT GROWERS,
`NATIONAL CORN GROWERS ASSOCIATION, AND NATIONAL
`SORGHUM PRODUCERS FOR LEAVE TO FILE AMICUS CURIAE
`BRIEF IN OPPOSITION TO PETITIONERS’ EMERGENCY MOTION
`AND IN SUPPORT OF RESPONDENTS
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`
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`Bartholomew J. Kempf
`Edmund S. Sauer
`Kimberly M. Ingram
`Jeffrey W. Sheehan
`BRADLEY ARANT BOULT CUMMINGS LLP
`1600 Division Street, Suite 700
`Nashville, TN 37203
`(615) 252-2374
`esauer@bradley.com
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`Counsel for Amici Curiae
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`Case: 19-70115, 06/16/2020, ID: 11724280, DktEntry: 149-1, Page 2 of 7
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`Pursuant to Federal Rule of Appellate Procedure 29 and Ninth Circuit Rule
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`29-3, the American Farm Bureau Federation, American Soybean Association,
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`National Cotton Council of America, National Association of Wheat Growers,
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`National Corn Growers Association, and National Sorghum Producers (together,
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`“the Growers”) respectfully request leave to file the attached amicus curiae brief in
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`opposition to Petitioners’ Emergency Motion to Enforce This Court’s Vacatur and
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`to Hold EPA in Contempt. The proposed amicus brief is attached as Exhibit 1. In
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`support of this Motion, the Growers state as follows:
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`1.
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`Counsel for amici curiae endeavored to obtain consent from all parties
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`before filing this motion. Respondents EPA and Monsanto Company consent to the
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`filing of the brief. Petitioners, however, oppose the filing of the brief.
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`2.
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`The Growers are six national trade associations that represent farmers,
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`ranchers, and their families nationwide. The Growers’ soybean, corn, wheat,
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`sorghum, cotton, and other crops provide the United States and the world with food,
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`fuel, feed, and fiber.
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`3.
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`Founded in 1919, the American Farm Bureau Federation (“AFBF”) is
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`a voluntary general farm organization formed to protect, promote, and represent the
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`business, economic, social, and educational interests of American farmers and
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`ranchers. AFBF represents nearly six million member families through its state and
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`county Farm Bureau organizations in all 50 states and Puerto Rico. A letter sent by
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`Case: 19-70115, 06/16/2020, ID: 11724280, DktEntry: 149-1, Page 3 of 7
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`the AFBF to EPA regarding the need for EPA to issue guidance on the use of existing
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`stocks of Xtendimax, Engenia, and FeXapan (the “Dicamba Products”) is attached
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`as Exhibit 2.
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`4.
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`Founded in 1920, the American Soybean Association (“ASA”) is a
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`national, private, not-for-profit trade association representing U.S. soybean growers
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`on domestic and international issues of importance to the soybean industry. It
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`represents the interests of more than 300,000 soybean farmers nationwide. A letter
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`sent by the ASA to EPA regarding the need for EPA to issue guidance on the use of
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`existing stocks of the Dicamba Products is attached as Exhibit 3.
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`5.
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`Founded in 1938, the National Cotton Council of America (“NCC”) is
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`the trade association for the U.S. cotton industry, representing the seven segments
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`of the raw cotton industry: producers, ginners, warehousers, merchants, cottonseed
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`processors and merchandisers, cooperatives, and textile manufacturers. The Cotton
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`Council’s mission is to ensure the ability of all U.S. cotton segments to compete
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`effectively and profitably in the raw cotton, oilseeds, and manufactured textile
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`product markets at home and abroad. A letter sent by the NCC to EPA regarding
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`the need for EPA to issue guidance on the use of existing stocks of the Dicamba
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`Products is attached as Exhibit 4.
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`6.
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`In 1950, a handful of wheat growers from across the country formed
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`the National Association of Wheat Growers (“NAWG”) to work toward common
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`solutions and make decisions for the future of America’s wheat producers. Decades
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`later, the NAWG continues to focus on the policies of the U.S. government that
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`affect the livelihoods of U.S. wheat producers as the primary representative in
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`Washington, D.C. for wheat growers, working with a team of 20 state wheat grower
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`organizations to benefit America’s wheat producers.
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`7.
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`Founded in 1957, the National Corn Growers Association is the trade
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`association for U.S. corn growers. It represents the interests of more than 300,000
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`corn growers and works with 49 affiliated state organizations to create and increase
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`opportunities for corn growers.
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`8.
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`Founded in 1955 to increase demand for grain sorghum, National
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`Sorghum Producers became the voice of the sorghum industry. For over 60 years,
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`National Sorghum Producers has represented sorghum farmers nationwide on
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`legislative and regulatory issues impacting the sorghum industry, and its mission is
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`to lead positive change for sorghum farmers through effective policy and
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`relationships.
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`9.
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`Growers have direct and immediate interests in Petitioners’ motion and
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`the EPA’s Final Cancellation Order for Three Dicamba Products, which regulates
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`existing stocks (including farmers’ use of existing stocks) of the Dicamba Products
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`during this crucial period of this growing season.
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`10. Growers also have a broader interest in preserving EPA’s authority to
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`issue cancellation orders in the first instance when a product registration is vacated
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`or cancelled. This authority is essential for providing farmers, if circumstances so
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`warrant, with continued access to existing stocks of cancelled products, particularly
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`in scenarios involving mid-growing season cancellations or vacaturs of registrations.
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`Losing access to a pesticide product in the middle of a growing season could
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`significantly limit a farmer’s ability to control for weeds, insects, or other pests,
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`resulting in potentially catastrophic economic losses on Growers.
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`11. The Growers’ first-hand experience places them in a unique position to
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`provide the Court with information about the importance of the Dicamba Products
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`and EPA’s Cancellation Order.
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`12. The Growers’ amicus brief does not challenge the Court’s vacatur of
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`the existing registrations. Rather, it focuses exclusively on the relief that Petitioners’
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`recent motion seeks, including an immediate ban on the use of the Dicamba
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`Products, and the substantial risks that awarding such relief would pose to Growers.
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`13. The outcome of this motion will have a direct effect on the Growers,
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`their productivity, their livelihoods, and their contributions to society. Further, the
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`relief sought in Petitioners’ Emergency Motion could devastate this season’s
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`plantings—already in the ground and depending on the formerly registered Dicamba
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`Products for weed control. Growers would bear the significant costs of lesser
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`alternative methods of weed control and yield losses if the Court grants Petitioners’
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`Case: 19-70115, 06/16/2020, ID: 11724280, DktEntry: 149-1, Page 6 of 7
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`motion.
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`14. Accordingly, the Growers respectfully request leave to file the amicus
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`curiae brief attached to this motion.
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`Respectfully submitted,
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`s/ Edmund S. Sauer
`Bartholomew J. Kempf
`Edmund S. Sauer
`Kimberly M. Ingram
`Jeffrey W. Sheehan
`BRADLEY ARANT BOULT CUMMINGS LLP
`1600 Division Street, Suite 700
`Nashville, TN 37203
`(615) 252-2374
`esauer@bradley.com
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`Counsel for Amici Curiae
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`Case: 19-70115, 06/16/2020, ID: 11724280, DktEntry: 149-1, Page 7 of 7
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`CERTIFICATE OF COMPLIANCE
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`I certify that pursuant to Federal Rules of Appellate Procedure 27(d)(2)(A),
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`Federal Rule of Appellate Procedure 32(g)(1), Federal Rule of Appellate Procedure
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`32(a)(5)–(6), and Ninth Circuit Rule 32-1, this brief has been prepared in a
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`proportionally spaced typeface, 14-point Times New Roman font, and contains 916
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`words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).
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`Dated: June 16, 2020
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`s/ Edmund S. Sauer
`Edmund S. Sauer
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 16, 2020, I electronically filed the foregoing
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`with the Clerk of the Court using the CM/ECF system which will send notification
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`of such filing to all registered CM/ECF users.
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`s/ Edmund S. Sauer
`Edmund S. Sauer
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