`
`Opinion and Mandate Issued on June 3rd, 2020
`
`No. 19-70115
`
`Before: Michael Daly Hawkins, M. Margaret McKeown, and
`William A. Fletcher, Circuit Judges
`
`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
`PETITIONERS’ OPPOSITION TO PROPOSED-INTERVENORS’
`EMERGENCY MOTIONS TO INTERVENE
`______________________________________
`
`CENTER FOR FOOD SAFETY
`CENTER FOR BIOLOGICAL
`George A. Kimbrell
`DIVERSITY
`Stephanie M. Parent
`Sylvia Shih-Yau Wu
`PO Box 11374
`Amy van Saun
`Portland, OR 97211
`2009 NE Alberta St., Suite 207
`T: (971) 717-6404
`Portland, OR 97211
`sparent@biologicaldiversity.org
`T: (971) 271-7372
`gkimbrell@centerforfoodsafety.org
`
`swu@centerforfoodsafety.org
`
`avansaun@centerforfoodsafety.org
`Counsel for Petitioners
`
`
`
`
`
`
`
`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 2 of 25
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`TABLE OF CONTENTS
`
`
`INTRODUCTION ....................................................................................... 1
`
`ARGUMENT ............................................................................................... 2
`
`I. Proposed Intervenors Fail to Meet the Requisite Test
`for Intervention. ....................................................................... 3
`
`A. Proposed Intervenors’ Motions Are Not Timely. ........... 3
`
`B. Proposed Intervenors’ Interests Are Adequately
`Represented By Existing Parties. ................................ 13
`
`II. The Court Should Also Decline Permissive Intervention. ... 16
`
`CONCLUSION ......................................................................................... 19
`
`
`
`
`
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`
`
`
`
`
`i
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 3 of 25
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Federal Cases
`Adams v. United States,
`449 F. App’x 653 (9th Cir. 2011) ......................................................... 11
`Arakaki v. Atano Cayetano,
`324 F.3d 1078 (9th Cir. 2003) ........................................................ 13, 14
`Cal. Dep’t of Toxic Substances Control v. Commercial Realty
`Projects, Inc.,
`309 F.3d 1113 (9th Cir. 2002) ................................................................ 3
`Calvert v. Huckins,
`109 F.3d 636 (9th Cir. 1997) ................................................................ 12
`Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,
`2005 WL 6789301 (N.D. Cal. May 31, 2005) ...................................... 18
`Donnelly v. Glickman,
`159 F.3d 405 (9th Cir. 1998) ................................................................ 16
`Drakes Bay Oyster Co. v. Salazar,
`2013 WL 451813 (N.D. Cal. Feb. 4, 2013) ........................................... 12
`Golden Wolf Partners v. BASF Corp., 2010 WL 5173197
`(E.D. Cal. Dec. 13, 2010) ...................................................................... 11
`League of United Latin Am. Citizens v. Wilson,
`131 F.3d 1297 (9th Cir. 1997) ...................................................... passim
`Lewis v. First Am. Title Ins. Co.,
`2010 WL 3735485 (D. Idaho Aug. 5, 2010) ........................................... 4
`Menominee Indian Tribe of Wisconsin v. Thompson,
`164 F.R.D. 672 (W.D. Wis. 1996) ......................................................... 17
`
`
`
`ii
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 4 of 25
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`Page(s)
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`Federal Cases (Cont’d)
`Nat’l Family Farm Coal. v. EPA,
`No. 19-70115, 2020 WL 2901136 (9th Cir. 2020) ....................... passim
`Nw. Forest Res. Council v. Glickman,
`82 F. 3d 825 (9th Cir. 1996) ........................................................... 15, 16
`Perry v. Proposition 8 Official Proponents,
`587 F.3d 947 (9th Cir. 2009) .................................................... 13, 17, 18
`Spangler v. Pasadena City Bd. of Educ.,
`552 F.2d 1326 (9th Cir. 1977) .............................................................. 16
`Sw. Ctr. for Biological Diversity v. Berg,
`268 F.3d 810 (9th Cir. 2001) .................................................................. 2
`United States v. Alisal Water Corp.,
`370 F.3d 915 (9th Cir. 2004) .................................................................. 3
`United States v. Oregon,
`913 F.2d 576 (9th Cir. 1990) .................................................................. 6
`United States v. State of Washington,
`86 F.3d 1499 (9th Cir. 1996) ............................................................ 4, 13
`Wilderness Soc. v. U.S. Forest Serv.,
`630 F.3d 1173 (9th Cir. 2011) ................................................................ 3
`Rules
`Federal Rule of Appellate Procedure Rule 15(d) ............................. 4, 5, 10
`Federal Rule of Civil Procedure 24 .................................................. 2, 3, 16
`Circuit Rule 15-1 ......................................................................................... 5
`
`
`
`
`iii
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 5 of 25
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`INTRODUCTION
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`More than one year and five months after Petitioners filed the
`
`
`
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`present expedited litigation, BASF Corporation (BASF) and E.I. du
`
`Pont de Nemours and Company (Corteva) (collectively, Proposed
`
`Intervenors) now seek intervention. See ECF 1-6 (Petition for Review
`
`filed Jan. 11, 2019). Proposed Intervenors slept on their rights to
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`intervene, even though they had every reason to know that this Court’s
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`adjudication of EPA’s 2018 registration decision could affect the
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`registration basis for their pesticide products.
`
`
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`Even after the Court issued its Order rejecting EPA’s argument
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`that the case was limited to just XtendiMax and vacating all three
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`pesticide use approvals, Proposed Intervenors waited yet another nine
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`days; they only leaped into action after Petitioners returned to this
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`Court seeking enforcement of its Order against EPA’s brazen attempt to
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`keep Proposed Intervenors’ products in use. ECF 127-3.
`
`
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`Proposed Intervenors are far too late. Huffing and puffing aside,
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`Proposed Intervenors have failed to identify a single interest that is not
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`adequately represented by EPA (or Intervenor Monsanto) at this
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`juncture, when the only question before this Court narrowly concerns
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`
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`1
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 6 of 25
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`EPA’s improper attempt to revise this Court’s Order and extend
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`continued OTT new uses on cotton and soy without a new registration
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`despite vacatur. Proposed Intervenors have been fine with letting EPA
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`do their bidding throughout the course of this case, they should not be
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`allowed to participate now only to cause delay and prejudice to
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`Petitioners. Because Proposed Intervenors fail the tests for
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`intervention, both as of right and by permission, the Court should deny
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`their motions.
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`ARGUMENT
`
`
`
`The Ninth Circuit evaluates whether to allow intervention under
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`the standards that govern intervention in district courts under Federal
`
`Rule of Civil Procedure 24. See Sw. Ctr. for Biological Diversity v. Berg,
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`268 F.3d 810, 817 (9th Cir. 2001). Proposed Intervenors fail to meet the
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`tests for either intervention as of right or permissive intervention
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`because their eleventh-hour emergency intervention motion is tardy,
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`their interests are adequately represented by EPA and Monsanto, and
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`because allowing their intervention would only cause further delay in
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`this case and unduly prejudice Petitioners.
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`
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`2
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 7 of 25
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`I.
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`
`
`Proposed Intervenors Fail to Meet the Requisite Test for
`Intervention.
`
`This Circuit applies a four-part test to motions for intervention as
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`a matter of right:
`
`(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.
`
`Fed. R. Civ. P. 24(a)(2); Wilderness Soc. v. U.S. Forest Serv., 630 F.3d
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`1173, 1177 (9th Cir. 2011) (en banc). All four requirements must be met
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`to allow intervention. See United States v. Alisal Water Corp., 370 F.3d
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`915, 919 (9th Cir. 2004).
`
`
`
`A. Proposed Intervenors’ Motions Are Not Timely.
`
`Timeliness is “the threshold requirement” for intervention,
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`whether as of right or permissively. League of United Latin Am.
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`Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). Timeliness is
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`dependent on three factors: (1) “the stage of the proceeding at which an
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`applicant seeks to intervene;” (2) “the reason for and length of the
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`delay;” and (3) “the prejudice to other parties.” Cal. Dep’t of Toxic
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`Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113,
`3
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`
`
`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 8 of 25
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`1119 (9th Cir. 2002). “[A]ny substantial lapse of time weighs heavily
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`against intervention.” United States v. State of Washington, 86 F.3d
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`1499, 1503 (9th Cir. 1996).
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`First, there can be no later stage to intervene in a legal proceeding
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`than here, where more than eighteen months have lapsed since
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`Petitioners filed this expedited petition for review, and where this Court
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`has already issued its opinion making abundantly clear that the scope
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`of review included Petitioners’ products, vacating their OTT uses, and
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`expeditiously issued the mandate on the same day.
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`Ninth Circuit courts have found motions to intervene to lack
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`timeliness at much earlier stages of litigation. See, e.g., League of
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`United Latin Am. Citizens, 131 F.3d at 1302-03 (that the case was still
`
`in pretrial stage was not dispositive on timeliness of motion to
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`intervene); Lewis v. First Am. Title Ins. Co., 2010 WL 3735485, at *2 (D.
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`Idaho Aug. 5, 2010) (rejecting motion to intervene as untimely even
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`though the court had not reached the merits of plaintiffs’ claims).
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`Proposed Intervenors admit that Rule 15(d) of the Federal Rule of
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`Appellate Procedure, governing timing of petitions for review of agency
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`orders such as this, direct that any motion to intervene “must be filed
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`
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`4
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`
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`within 30 days after the petition for review is filed.” Fed. R. App. P.
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`15(d); Circuit Rule 15-1. Petitioners are far too late.
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`Proposed Intervenors rely on Day v. Apoliona, in which this Court
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`granted the amicus State of Hawaii’s motion to intervene after the
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`panel decision was issued, but that case is inapplicable. 505 F.3d 963,
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`966 (9th Cir. 2007); ECF 129-1 at 11; ECF 130-1 at 13. There, the State
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`of Hawaii, which had participated as amicus from the inception of the
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`case at the district court level and again at the appellate level, moved to
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`intervene so it could petition for panel rehearing after a decision was
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`issued. In allowing intervention at that late stage, the court emphasized
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`specifically the fact that Hawaii had not “ignored the litigation or held
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`back from participation to gain tactical advantage.” Day, 505 F.3d at
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`966. Rather, the intervenor had “sought amicus status, and—
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`singlehandedly—argued a potentially dipositive issue in [the] case to
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`the district court and [the] panel.” Id. This Court found intervenor’s
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`participation particularly helpful since the existing defendants were
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`“unwilling[ ] … to take a position on [that] issue.” Id. at 965. No such
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`compelling reasons exist here, nor do Proposed Intervenors offer any.
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`Neither BASF nor Corteva sought to participate in any way before this
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`
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`5
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`Court, and neither the motion nor their proposed opposition to
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`Petitioners’ Emergency Motion put forth any argument, let alone any
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`dispositive one, that are not presented by EPA and Monsanto. See infra
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`pp. 13-16.
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`Second, Proposed Intervenors entirely failed to justify their
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`dilatory motions. Proposed Intervenors claim that they thought the
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`Petition for Review only concerned XtendiMax, pointing to this Court’s
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`order for supplemental briefing and offering nothing more beyond
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`simply parroting arguments that have already been made by Monsanto
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`and EPA, and that were squarely rejected by this Court. ECF 129-1 at
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`8; ECF 130-1 at 6-7; Nat’l Family Farm Coal. v. EPA, No. 19-70115,
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`2020 WL 2901136, at *8 (9th Cir. 2020) (NFFC). But this Circuit has
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`instructed that an applicant moving to intervene must act timely when
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`he “knows or has reason to know that his interests might be adversely
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`affected by the outcome of the litigation.” United States v. Oregon, 913
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`F.2d 576, 589 (9th Cir. 1990) (emphasis added) (quoting United States v.
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`City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989)). Here, the Petition
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`expressly stated that Petitioners sought review of EPA’s order granting
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`the registration for all “the new uses” being approved pursuant to the
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`
`
`6
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 11 of 25
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`registration, and referred to and attached as its only exhibit, EPA’s
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`October 31, 2018 registration decision document entitled: “Registration
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`Decision for the Continuation of Uses of Dicamba on Dicamba Tolerant
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`Cotton and Soybean,” uses that Proposed Intervenors specifically
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`applied for. NFFC, 2020 WL 2901136, at *8; ECF 1-7 (reproduced at
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`ER1-24) (announcing approval of “requests by Bayer CropScience
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`(formerly Monsanto Company), Corteva (formerly DuPont), and BASF
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`to amend their existing conditional registrations that contain expiration
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`dates of November 9, 2018, and December 20, 2018, respectively. …
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`Three registrations, EPA Registration Number 352-913, 524-617, and
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`7969-345, are impacted by this decision.”); ECF 1-6 at 1-2. If it was
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`unclear then that this Petition for Review might implicate Proposed
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`Intervenors’ interests, as this Court pointed out, Petitioners’ opening
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`brief (filed August 13, 2019, ten months before Proposed Intervenors’
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`present motion), also clearly states: “This petition seeks review of the
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`October 31, 2018 decision by the United States Environmental
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`Protection Agency (EPA) to continue the new uses registrations of the
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`
`
`7
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 12 of 25
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`pesticide dicamba on dicamba-resistant cotton and soybean[.]” NFFC,
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`2020 WL 2901136, at *8.1
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`Proposed Intervenors even admit that the parties to this litigation
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`repeatedly made reference to their interests being at issue in this
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`action. BASF acknowledges in its Motion that Respondents’ principal
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`brief references the 2018 registration of Engenia and FeXapan, see ECF
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`48 at 12-13 n.3, in response to Petitioners’ reference to all three
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`registrants in its brief, see ECF 35 at 2 n.4. ECF 130-1 at 3. Corteva’s
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`Motion also recognized that Petitioners’ brief, ECF 35 at 2 n.4, and
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`Respondents’ brief, ECF 48 at 12-13 n.3, both referred to the October
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`31, 2018 decision as also encompassing the other two OTT dicamba
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`registrations.
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`Even if they somehow had reason to believe that Petitioners only
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`challenged EPA’s OTT use approval for Monsanto’s XtendiMax,2
`
`
`1 Nor did Petitioners try to “hide the ball,” as Proposed Intervenors
`suggest, ECF 130-1 at 4; ECF 129-1 at 9. As this Court found,
`Petitioners have consistently presented their challenge as a challenge
`against the OTT new use approval encompassing all three pesticide
`products. NFFC, 2020 WL 2901136, at *8 (emphasis added); see ECF 1-
`6; ECF 115-1 at 1-3.
`
` 2
`
` Proposed Intervenors point out that their products were not named in
`Petitioners’ Petition for Review, ECF 129-1; ECF 130-1, but as this
`8
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`
`
`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 13 of 25
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`Proposed Intervenors’ claim that they therefore had no valid interest to
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`seek intervention is still a complete lie. As this Court stated, the
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`“administrative record produced by the EPA includes materials
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`concerning all three products,” and “[m]ost important, the registration
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`decision, including its risk assessments and cost-benefit analysis,
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`concerned OTT dicamba products generally and was not registrant-
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`specific.” NFFC, 2020 WL 2091136, at *9.3 Proposed Intervenors had
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`every reason to know that this Court’s review of EPA’s risk assessments
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`and decision-making documents—the same documents EPA relied on to
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`approve OTT uses of their pesticide products—may affect them. See id.
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`(“Indeed, the EPA’s decision document specifies that ‘[t]hree
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`registrations ... are impacted by this decision.”).
`
`
`Court in its June 3, 2020 decision noted, “even … Monsanto admitted in
`its supplemental brief to [the Court]” that “while the ‘petition for review
`did not mention the Engenia or FeXapan registration orders[,] [s]trictly
`speaking, it did not mention the XtendiMax registration order either.’”
`ECF 125 at 24 (quoting ECF 116 at 6).
`
` 3
`
` For this reason, BASF’s argument that there are a handful of studies
`specific to Engenia pesticide that were not part of the administrative
`record of this case is meritless. This Court squarely rejected EPA’s same
`argument. See id. (rejecting EPA’s argument that “[t]hese other
`registrations have administrative records that may overlap with, but
`are distinct from the administrative record for XtendiMax”).
`9
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 14 of 25
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`And, Proposed Intervenors have no explanation as to why they did
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`not move to intervene when this Court directly posed the question of
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`whether their pesticide registrations were part of the present petition
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`for review nearly a month and a half ago, on April 29, 2020, directing
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`supplemental briefing from all parties specifically to determine whether
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`the scope of Petitioners’ challenge extends to Engenia and FeXapan.
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`ECF 111. Proposed Intervenors admit that they were aware that the
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`panel directed supplemental briefing on this question. ECF 130-1 at 3;
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`ECF 129-1 at 9. So, even assuming that the 30-day clock for
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`intervention under FRAP 15(d) did not start until the Court issued its
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`Order requesting supplemental briefing on April 29, 2020,4 Proposed
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`Intervenors’ motions 44-days later, after this Court’s issuance of
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`Mandate, are still too late.
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`Proposed Intervenors offer no justification for their months of
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`inaction except feebly claiming that “it would be unreasonable to hold
`
`
`4 Proposed Intervenor’s claim that the 30-day clock began when
`Petitioners filed their supplemental brief on May 13, 2020, is simply
`absurd. If Proposed Intervenors believe that their registrations should
`not be subject to this Court’s review, as they insist now, they could have
`sought intervention and submit their arguments when the Court asked
`that very question. ECF 130-1 at 11; ECF 129-1 at 9.
`
`
`
`10
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 15 of 25
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`that a potential intervenor must read every filing on a docket even
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`when the petition itself does not implicate its interest.” ECF 130-1 at
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`11; cf. ECF 1-7 at 3 (EPA’s 2018 registration decision that explicitly
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`named Proposed Intervenors, and is referred to and attached as
`
`Petitioners only exhibit). Proposed Intervenors are global pesticide
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`companies who regularly participate in EPA’s pesticide registrations
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`and legal challenges to the use of their pesticide products. See, e.g.,
`
`Golden Wolf Partners v. BASF Corp., 2010 WL 5173197, at *1 (E.D. Cal.
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`Dec. 13, 2010) (challenging BASF fungicides for damage to crops);
`
`Adams v. United States, 449 F. App’x 653, 657 (9th Cir. 2011)
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`(challenging DuPont (or Corteva) herbicide drift for damage to crops).
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`Proposed Intervenors are currently represented by seven of BASF and
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`four of Corteva’s counsel just for their present motions to intervene. It is
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`hard to imagine proposed intervenors with more legal resources to
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`monitor and timely intervene to protect their interests.
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`Third, Proposed Intervenors cannot intervene at this late stage in
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`the proceeding without causing undue delay and prejudice to
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`Petitioners. As made clear throughout this expedited litigation and in
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`Petitioners’ Emergency Motion, immediate enforcement of this Court’s
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`
`
`11
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`
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`Mandate is necessary to prevent harm to U.S. agriculture and wildlife
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`from dicamba use this season. ECF 127-1 at 5-6. Calvert v. Huckins, 109
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`F.3d 636, 638 (9th Cir. 1997) (stating that “postjudgment intervention
`
`is generally disfavored because it creates delay and prejudice to existing
`
`parties.”). Proposed Intervenors have made plain their intent to delay
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`this case ruling in their proposed opposition to Petitioners’ Emergency
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`Motion,5 where they requested that this Court recall its mandate and
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`delay its issuance until the period for petition for rehearing or certiorari
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`has run. See ECF 145 at 18. Intervention this late in the litigation
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`would cause unreasonable delay, prejudice Petitioners, and result in
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`significant harm to agriculture, human health and the environment,
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`and threatened and endangered species.
`
`
`5 Proposed Intervenor BASF filed the proposed opposition brief before
`this Court even ruled on their right to participate, even though the
`Court’s Order on Petitioners’ Emergency Motion only directed
`Petitioner and Respondent EPA to submit briefing. This Court should
`reject Proposed Intervenors’ opposition brief and disregard it entirely.
`See Drakes Bay Oyster Co. v. Salazar, 2013 WL 451813, at *9 n.6 (N.D.
`Cal. Feb. 4, 2013) (agreeing “that [p]roposed [i]ntervenors should have
`sought leave of court prior to filing their proposed opposition,” denying
`intervention, and treating it as an amicus brief where proposed
`intervenors had timely sought intervention one week after the case was
`filed).
`
`
`
`12
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 17 of 25
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`Because Proposed Intervenors’ motions to intervene are too late,
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`this Court need not reach any of the remaining three factors in the
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`intervention-as-of-right test, and should deny their motions. State of
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`Washington, 86 F.3d at 1503 (citing United States v. Oregon, 913 F.2d
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`576, 588 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991)).
`
`B. Proposed Intervenors’ Interests Are Adequately
`Represented By Existing Parties.
`
`In examining the adequacy of representation factor, this Court
`
`
`
`considers three questions:
`
`(1) whether the interests of a present party is such that it will
`undoubtedly make all the proposed intervenor’s arguments; (2)
`whether the present party is capable and willing to make such
`argument; and (3) whether a proposed intervenor would offer any
`necessary elements to the proceeding that other parties would
`neglect.
`
`Arakaki v. Atano Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (citing
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`California v. Tahoe Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir.
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`1986)). “The ‘most important factor’ to determine whether a proposed
`
`intervenor is adequately represented by a present party to the action is
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`‘how the [intervenor’s] interest compares with the interest of existing
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`parties.’” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950-
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`51 (9th Cir. 2009) (quoting Arakaki, 324 F.3d at 1086) (internal citation
`
`
`
`13
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`
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 18 of 25
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`omitted); see also Arakaki, 324 F.3d at 1086 (“If the applicant’s interest
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`is identical to that of one of the present parties, a compelling showing
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`should be required to demonstrate inadequate representation.”). It is
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`presumed that the government adequately represents the applicant
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`when both parties share the same interest. See Arakaki, 324 F.3d at
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`1086 (citing United States v. City of Los Angeles, 288 F.3d, 391, 401 (9th
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`Cir. 2002)).
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`Proposed Intervenors have failed to identify any reason why EPA
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`and Monsanto would not adequately represent their interests at this
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`juncture, when the only question before the Court is whether EPA is
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`faithfully executing this Court’s Mandate. If anything, EPA’s
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`registration decision and its latest administrative order to override this
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`Court make abundantly clear that it is more than willing and ready to
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`do Proposed Intervenors’ bidding. See ECF 35 at 9 & n.10 (Petitioners’
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`citing to incidents where Monsanto and the pesticide industry
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`influenced EPA’s decision to reject experts’ recommendations to prohibit
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`use after a spring “cutoff date” to mitigate vapor drift damage because
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`the industry opposed it); ECF 127-1.
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`14
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 19 of 25
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`Nor can Proposed Intervenors point to any differences between
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`their interests and those of Intervenor Monsanto, other than stating the
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`obvious fact that they are different pesticide companies with different
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`pesticide products. There is no difference here. All three products are
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`considered the same OTT dicamba uses in EPA’s October 31, 2018
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`registration decision, were approved with identical label use
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`instructions and outstanding data requirements under the same FIFRA
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`conditional new use approval authority, and are all subject to this
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`Court’s vacatur (and are even treated the same by EPA in its unlawful
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`administrative order). Proposed Intervenors’ motions fail to
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`demonstrate inadequate representation. See Nw. Forest Res. Council v.
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`Glickman, 82 F. 3d 825, 838 (9th Cir. 1996) (denying the applicant’s
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`motion for intervention as of right where the only “disagreement
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`[between them was] minor . . . [and] reflect[ed] only a difference in
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`strategy.”); League of United Latin Am. Citizens, 131 F.3d at 1306
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`(“When a proposed intervenor has not alleged any substantive
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`disagreement between it and the existing parties to the suit, and
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`instead has vested its claim for intervention entirely upon a
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`15
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`disagreement over litigation strategy or tactics, courts have been
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`hesitant to accord the applicant full-party status”).
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`II. The Court Should Also Decline Permissive Intervention.
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`Permissive intervention is also unwarranted. Permissive
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`Intervention may be granted where an applicant “shows (1)
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`independent grounds for jurisdiction; (2) the motion is timely; and (3)
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`the applicant’s claim or defense, and the main action, have a question of
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`law or a question of fact in common.” Nw. Forest Res. Council, 82 F.3d
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`at 839 (citing Fed. R. Civ. P. 24(b)(2)). “Even if an applicant satisfies the
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`threshold requirements, the district court has discretion to deny
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`permissive intervention.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th
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`Cir. 1998). “In exercising its discretion the court shall consider whether
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`the intervention will unduly delay or prejudice the adjudication of the
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`rights of the original parties.” Id. (citing Fed. R. Civ. P 24(b)(3)).
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`Additionally, the court may also consider other factors, including “the
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`nature and extent of the intervenors’ interest” and “whether the
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`intervenors’ interests are adequately represented by other parties.”
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`Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir.
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`1977).
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`16
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 21 of 25
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`As detailed above, Proposed Intervenors’ motions are untimely.
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`See supra pp. 3-13. Timeliness in the context of permissive intervention
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`is analyzed even “more strictly” than that of intervention as of right.
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`League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th
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`Cir. 1997). On this factor alone, the Court should decline permissive
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`intervention.
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`Other factors, including adequate representation and potential
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`delay and prejudice, also weigh heavily in favor of denying Proposed
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`Intervenor’s request for permissive intervention. “When intervention of
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`right is denied for the proposed intervenor’s failure to overcome the
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`presumption of adequate representation … the case for permissive
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`intervention disappears.” Menominee Indian Tribe of Wisconsin v.
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`Thompson, 164 F.R.D. 672, 678 (W.D. Wis. 1996) (emphasis added);
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`Perry, 587 F.3d at 955 (“The district court’s denial of intervention based
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`on the identity and interests of [existing parties] and [their] ability to
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`represent those interests adequately is supported by our case law on
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`intervention in other contexts.”) (citing United States ex rel. Reichards
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`v. De Leon Guerrero, 4 F.3d 749, 756 (9th Cir. 1993) (denial of
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`permissive intervention based on finding that “the government party to
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`17
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 22 of 25
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`the case made the same arguments as the taxpayer intervenors, and the
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`government party would adequately represent the intervenors’ privacy
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`interests.”)). The Ninth Circuit in Perry also affirmed the district court’s
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`decision to deny intervention based on potential delay to the
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`proceedings. As detailed above, supra pp. 13-16, Proposed Intervenors
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`have not demonstrated any reason why or how their interests would not
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`be adequately represented by EPA and Monsanto, and have only
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`evinced their intent to cause further delay, despite this Court’s sua
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`sponte expediting the present litigation and Petitioners’ filing of an
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`emergency motion to enforce this Court’s Mandate.
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`For these reasons, the Court should deny permissive intervention.
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`However, if the Court is inclined to grant permissive intervention,
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`based on the adequacy of representation by EPA and Monsanto, the
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`Court should still disregard and reject BASF’s Proposed Opposition to
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`Petitioners’ Emergency Motion, ECF 145, and deny Corteva’s request to
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`file a joinder should the Court grant intervention, ECF 148. Instead, the
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`Court should limit Proposed Intervenors to file a single, joint brief with
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`EPA and Monsanto, should the Court require any further briefing in
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`this case. See, e.g., Ctr. for Biological Diversity v. U.S. Fish & Wildlife
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`18
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 23 of 25
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`Serv., 2005 WL 6789301, at *7 (N.D. Cal. May 31, 2005) (“[T]he Court
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`orders that intervenors will join in common briefing and will be jointly
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`represented at hearings and other court proceedings by a single counsel.
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`Intervenors’ participation is limited to the four claims now pending;
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`they may not re-litigate the fifth cause of action that has been
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`dismissed.”)
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`CONCLUSION
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`
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`For these reasons, Petitioners respectfully request this Court deny
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`the Motions to Intervene by Proposed Intervenors BASF and Corteva,
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`and disregard and reject Proposed Intervenor BASF’s proposed
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`opposition to Petitioners’ Emergency Motion.
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`Respectfully submitted this 17th day of June, 2020.
`
`/s/ George A. Kimbrell
`George A. Kimbrell
`Sylvia Shih-Yau Wu
`Amy van Saun
`2009 NE Alberta St., Suite 207
`Portland, OR 97211
`T: (971) 271-7372
`gkimbrell@centerforfoodsafety.org
`swu@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
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`19
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 24 of 25
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`Stephanie M. Parent
`PO Box 11374
`Portland, OR 97211
`T: (971) 717-6404
`SParent@biologicaldiversity.org
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` Counsel for Petitioners
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`20
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`Case: 19-70115, 06/17/2020, ID: 11725412, DktEntry: 151-1, Page 25 of 25
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify that this brief complies with the requirements of
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`Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
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`Century Schoolbook font, a proportionally spaced font.
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`I further certify that this brief complies with Rule 27(d)(2) of the
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`Federal Rules of Appellate Procedure, because it contains 3,698 words,
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`excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
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`according to the count of Microsoft Word