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`Mandate Issued on June 3, 2020
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`No. 19-70115
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`Before: Hawkins, McKeown, and W. Fletcher, Circuit Judges
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`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
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`NATIONAL FAMILY FARM COALITION, et al.,
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`Petitioners,
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`v.
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`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
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`Respondents,
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`and
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`MONSANTO COMPANY, BASF CORPORATION, and E.I. DU PONT
`DE NEMOURS AND COMPANY
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`Intervenor-Respondents.
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`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
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`PETITIONERS’ RESPONSE TO INTERVENOR BASF’S
`MOTION TO RECALL AND STAY MANDATE
`______________________________________
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`CENTER FOR FOOD SAFETY
`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
`
`CENTER FOR BIOLOGICAL
`DIVERSITY
`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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`
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 2 of 8
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`After granting BASF Corporation (BASF) and E.I. du Pont de
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`Nemours and Company (Corteva) intervention, the Court requested
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`Petitioners’ response to BASF’s cross motion to recall the mandate so it
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`could petition for rehearing under FRAP 41, specifically concerning
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`whether BASF’s Engenia product was properly at issue in the 2018
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`Registration decision and, similarly, whether the Court has exclusive
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`jurisdiction over Engenia, based on BASF’s assertion that there was no
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`public hearing to trigger FIFRA Section 16(b), 7 U.S.C. § 136n(b). ECF
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`145 at 3. In light of these circumstances and the recent orders of the
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`Court granting intervention and denying Petitioners’ emergency
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`motion, Petitioners offer the following response.
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`1.
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`Intervenor BASF claims it will lose sales from immediate
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`vacatur, but its claim rings hollow given the timing here. BASF alleges
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`it still has $44 million of Engenia product on hand, but does not
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`demonstrate that the product would actually be sold for use this season,
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`given that BASF declared product decisions and orders began last
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`December and that the majority of applications will be made within 30
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`days of June 16, 2020. Kay Decl., ECF 130-2 ¶¶ 12, 14. As BASF notes,
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`it has already sold four times that amount of Engenia. Id. ¶ 15 (“BASF
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`1
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 3 of 8
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`estimates that there is enough Engenia currently located throughout
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`the customer channel to treat 26.7 million acres of soybeans and
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`cotton.”); ¶ 16 (unsold Engenia is enough to cover 6.6 million acres).
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`2.
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`BASF also cannot rely on harms to growers because it does
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`not represent them. BASF and amici representing growers’ groups were
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`heard on Petitioners’ emergency motion; therefore, BASF’s reliance on
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`impacts to users does not sustain its request to recall the mandate. See
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`ECF 145 at 18-19 (alleging harm to growers, which BASF does not
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`represent).
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`3.
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`Should the Court grant Intervenors’ motion and recall the
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`mandate for the reasons presented, the interests of justice and judicial
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`economy counsel that this Court limit Intervenors’ petitions for
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`rehearing, and/or otherwise instruct all parties to consolidate the issues
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`on petitions for rehearing to avoid duplicity and repetition. If the Court
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`recalls the mandate, it should be for the limited and express purpose
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`sought, allowing BASF and Corteva to file a joint petition for rehearing
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`on the issue of whether the panel erred in including their dicamba
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`products in the scope of the decision. Both BASF and Corteva sought
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`intervention belatedly, after this Court had issued its mandate, alleging
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`2
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 4 of 8
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`lack of notice that their dicamba registrations were at issue in the
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`petition for review, and claiming that their interests in showing why
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`their products should not have been covered by the Court’s decision
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`were inadequately represented by Respondent EPA and Intervenor
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`Monsanto. See ECF 130-1 at 18-19 (“There is no party that has the
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`same incentive as BASF to explain why the panel decision should not
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`have reached the Engenia registration”); ECF 129-1 at 21 (“Monsanto
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`does not have same incentive to explain the Panel should not have
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`addressed [Corteva]’s registration.”). Corteva filed a notice of joinder in
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`BASF’s opposition to Petitioners’ emergency motion without raising any
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`arguments on its own. ECF 148.
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`Since BASF and Corteva’s identical interest is in challenging the
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`Court’s determination that their products were covered by the present
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`petition for review, the Court should limit the recall of mandate to allow
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`them to file a single consolidated petition for review on that question.
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`That is what the Ninth Circuit did in Day v. Apoliona, the only case
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`BASF cites to support granting its intervention for the limited purpose
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`of pursuing rehearing. See ECF 130-1 at 13. There, the Ninth Circuit
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`granted the State of Hawaii’s post-decision intervention request, despite
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`3
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 5 of 8
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`its tardiness, and simultaneously accepted its proposed petition for
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`rehearing on a single, dispositive issue which formed the basis of the
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`panel’s decision to overturn the lower court’s ruling, where the State
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`was the only one that had raise that argument as an amicus, and where
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`no existing party was going to seek rehearing. Apoliona, 505 F.3d 963,
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`966 (9th Cir. 2007); see Anderson v. Knox, 300 F.2d 296, 297 (9th
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`Cir.1962) (“A properly drawn petition for rehearing serves a very
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`limited purpose.”). The Court need not entertain any other arguments,
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`nor admit evidence outside of the current administrative record. See
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`Amster v. U.S. District Court for Cent. Dist. of Cal., 806 F.2d 1347, 1356
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`(9th Cir. 1986) (“Consideration of subsequent factual occurrences is,
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`thus, beyond the scope of a petition for rehearing.”); id. (an abuse of
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`privilege of petition for rehearing “when [a party] seeks review of a
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`scope greater than the limited confines of Fed. R. App. P. 40”) (citing
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`Anderson, 300 F.2d at 297).
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`4.
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`To the extent that the Court decides not to limit its recall to
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`allow petition for rehearing on this limited issue and only to
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`Intervenors BASF and Corteva, the Court can and should still require
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`that Respondent EPA and all Respondent-Intervenors consolidate the
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`4
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 6 of 8
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`issues raised in their petitions for review, and to the extent practicable,
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`join in filing a single petition for review, in the interests of judicial
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`efficiency and economy. See Fed. R. App. P. 28(j); 9th Cir. R. 32(b) &
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`advisory committee note (explaining that Rule 32-2(b) encourages
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`separately represented parties to file a joint brief to avoid burdening the
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`Court with repetitive presentations of common facts and issues”). See,
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`e.g., U.S. v. Albert Inv. Co., Inc., 585 F.3d 1386, 1396 (10th Cir. 2009)
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`(“intervention as of right ‘may be subject to appropriate conditions or
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`restrictions responsive among other things to the requirements of
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`efficient conduct of the proceedings.’”) (citation omitted); Beauregard,
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`Inc. v. Sword Servs., LLC, 107 F.3d 351, 352–53 (5th Cir.1997) (“It is
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`now a firmly established principle that reasonable conditions may be
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`imposed even upon one who intervenes as of right.”); Fair Empl. &
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`Hous. v. Lucent Techs., Inc., 642 F.3d 728, 741–42 (9th Cir. 2011) (citing
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`Beauregard and recognizing district court authority to condition
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`intervenor’s participation in a permissive intervention case);
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`Earthworks v. U.S. Dep't of Interior, No. 09–01972 (HHK), 2010 WL
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`3063143, at *2 (D.D.C. Aug. 3, 2010) (granting intervention as of right
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`but requiring certification with any filing by intervenor that the filling
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`5
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 7 of 8
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`“does not contain arguments duplicative of those [raised by] the federal
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`defendants or intervenor-defendants”). Such a restriction is consistent
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`with the requirements of the rules governing petitions for rehearing.
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`See, e.g., Fed. R. App. P. 40(a)(2) (requiring a petition for rehearing to
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`“state with particularity each point of law or fact that the petitioner
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`believes the court has overlooked or misapprehended); Fed. R. App. P.
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`35(b)(B) (requiring issues in a petition for rehearing en banc to be
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`“concisely stated”).
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`Respectfully submitted this 23rd day of June, 2020.
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`/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
`
`
`Stephanie M. Parent
`PO Box 11374
`Portland, OR 97211
`T: (971) 717-6404
`SParent@biologicaldiversity.org
`
` Counsel for Petitioners
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`6
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`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 8 of 8
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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 1,112 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.
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` s/ George A Kimbrell
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`GEORGE A. KIMBRELL
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