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Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 1 of 8
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`Mandate Issued on June 3, 2020
`
`No. 19-70115
`
`Before: Hawkins, McKeown, and W. 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, BASF CORPORATION, and E.I. DU PONT
`DE NEMOURS AND COMPANY
`
`Intervenor-Respondents.
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`PETITIONERS’ RESPONSE TO INTERVENOR BASF’S
`MOTION TO RECALL AND STAY MANDATE
`______________________________________
`
`
`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
`
`
`Counsel for Petitioners
`
`

`

`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
`
`Nemours and Company (Corteva) intervention, the Court requested
`
`Petitioners’ response to BASF’s cross motion to recall the mandate so it
`
`could petition for rehearing under FRAP 41, specifically concerning
`
`whether BASF’s Engenia product was properly at issue in the 2018
`
`Registration decision and, similarly, whether the Court has exclusive
`
`jurisdiction over Engenia, based on BASF’s assertion that there was no
`
`public hearing to trigger FIFRA Section 16(b), 7 U.S.C. § 136n(b). ECF
`
`145 at 3. In light of these circumstances and the recent orders of the
`
`Court granting intervention and denying Petitioners’ emergency
`
`motion, Petitioners offer the following response.
`
`1.
`
`Intervenor BASF claims it will lose sales from immediate
`
`vacatur, but its claim rings hollow given the timing here. BASF alleges
`
`it still has $44 million of Engenia product on hand, but does not
`
`demonstrate that the product would actually be sold for use this season,
`
`given that BASF declared product decisions and orders began last
`
`December and that the majority of applications will be made within 30
`
`days of June 16, 2020. Kay Decl., ECF 130-2 ¶¶ 12, 14. As BASF notes,
`
`it has already sold four times that amount of Engenia. Id. ¶ 15 (“BASF
`
`
`
`1
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 3 of 8
`
`estimates that there is enough Engenia currently located throughout
`
`the customer channel to treat 26.7 million acres of soybeans and
`
`cotton.”); ¶ 16 (unsold Engenia is enough to cover 6.6 million acres).
`
`2.
`
`BASF also cannot rely on harms to growers because it does
`
`not represent them. BASF and amici representing growers’ groups were
`
`heard on Petitioners’ emergency motion; therefore, BASF’s reliance on
`
`impacts to users does not sustain its request to recall the mandate. See
`
`ECF 145 at 18-19 (alleging harm to growers, which BASF does not
`
`represent).
`
`3.
`
`Should the Court grant Intervenors’ motion and recall the
`
`mandate for the reasons presented, the interests of justice and judicial
`
`economy counsel that this Court limit Intervenors’ petitions for
`
`rehearing, and/or otherwise instruct all parties to consolidate the issues
`
`on petitions for rehearing to avoid duplicity and repetition. If the Court
`
`recalls the mandate, it should be for the limited and express purpose
`
`sought, allowing BASF and Corteva to file a joint petition for rehearing
`
`on the issue of whether the panel erred in including their dicamba
`
`products in the scope of the decision. Both BASF and Corteva sought
`
`intervention belatedly, after this Court had issued its mandate, alleging
`
`
`
`2
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 4 of 8
`
`lack of notice that their dicamba registrations were at issue in the
`
`petition for review, and claiming that their interests in showing why
`
`their products should not have been covered by the Court’s decision
`
`were inadequately represented by Respondent EPA and Intervenor
`
`Monsanto. See ECF 130-1 at 18-19 (“There is no party that has the
`
`same incentive as BASF to explain why the panel decision should not
`
`have reached the Engenia registration”); ECF 129-1 at 21 (“Monsanto
`
`does not have same incentive to explain the Panel should not have
`
`addressed [Corteva]’s registration.”). Corteva filed a notice of joinder in
`
`BASF’s opposition to Petitioners’ emergency motion without raising any
`
`arguments on its own. ECF 148.
`
`Since BASF and Corteva’s identical interest is in challenging the
`
`Court’s determination that their products were covered by the present
`
`petition for review, the Court should limit the recall of mandate to allow
`
`them to file a single consolidated petition for review on that question.
`
`That is what the Ninth Circuit did in Day v. Apoliona, the only case
`
`BASF cites to support granting its intervention for the limited purpose
`
`of pursuing rehearing. See ECF 130-1 at 13. There, the Ninth Circuit
`
`granted the State of Hawaii’s post-decision intervention request, despite
`
`
`
`3
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 5 of 8
`
`its tardiness, and simultaneously accepted its proposed petition for
`
`rehearing on a single, dispositive issue which formed the basis of the
`
`panel’s decision to overturn the lower court’s ruling, where the State
`
`was the only one that had raise that argument as an amicus, and where
`
`no existing party was going to seek rehearing. Apoliona, 505 F.3d 963,
`
`966 (9th Cir. 2007); see Anderson v. Knox, 300 F.2d 296, 297 (9th
`
`Cir.1962) (“A properly drawn petition for rehearing serves a very
`
`limited purpose.”). The Court need not entertain any other arguments,
`
`nor admit evidence outside of the current administrative record. See
`
`Amster v. U.S. District Court for Cent. Dist. of Cal., 806 F.2d 1347, 1356
`
`(9th Cir. 1986) (“Consideration of subsequent factual occurrences is,
`
`thus, beyond the scope of a petition for rehearing.”); id. (an abuse of
`
`privilege of petition for rehearing “when [a party] seeks review of a
`
`scope greater than the limited confines of Fed. R. App. P. 40”) (citing
`
`Anderson, 300 F.2d at 297).
`
`4.
`
`To the extent that the Court decides not to limit its recall to
`
`allow petition for rehearing on this limited issue and only to
`
`Intervenors BASF and Corteva, the Court can and should still require
`
`that Respondent EPA and all Respondent-Intervenors consolidate the
`
`
`
`4
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 6 of 8
`
`issues raised in their petitions for review, and to the extent practicable,
`
`join in filing a single petition for review, in the interests of judicial
`
`efficiency and economy. See Fed. R. App. P. 28(j); 9th Cir. R. 32(b) &
`
`advisory committee note (explaining that Rule 32-2(b) encourages
`
`separately represented parties to file a joint brief to avoid burdening the
`
`Court with repetitive presentations of common facts and issues”). See,
`
`e.g., U.S. v. Albert Inv. Co., Inc., 585 F.3d 1386, 1396 (10th Cir. 2009)
`
`(“intervention as of right ‘may be subject to appropriate conditions or
`
`restrictions responsive among other things to the requirements of
`
`efficient conduct of the proceedings.’”) (citation omitted); Beauregard,
`
`Inc. v. Sword Servs., LLC, 107 F.3d 351, 352–53 (5th Cir.1997) (“It is
`
`now a firmly established principle that reasonable conditions may be
`
`imposed even upon one who intervenes as of right.”); Fair Empl. &
`
`Hous. v. Lucent Techs., Inc., 642 F.3d 728, 741–42 (9th Cir. 2011) (citing
`
`Beauregard and recognizing district court authority to condition
`
`intervenor’s participation in a permissive intervention case);
`
`Earthworks v. U.S. Dep't of Interior, No. 09–01972 (HHK), 2010 WL
`
`3063143, at *2 (D.D.C. Aug. 3, 2010) (granting intervention as of right
`
`but requiring certification with any filing by intervenor that the filling
`
`
`
`5
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 7 of 8
`
`“does not contain arguments duplicative of those [raised by] the federal
`
`defendants or intervenor-defendants”). Such a restriction is consistent
`
`with the requirements of the rules governing petitions for rehearing.
`
`See, e.g., Fed. R. App. P. 40(a)(2) (requiring a petition for rehearing to
`
`“state with particularity each point of law or fact that the petitioner
`
`believes the court has overlooked or misapprehended); Fed. R. App. P.
`
`35(b)(B) (requiring issues in a petition for rehearing en banc to be
`
`“concisely stated”).
`
`
`
`Respectfully submitted this 23rd 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
`
`
`Stephanie M. Parent
`PO Box 11374
`Portland, OR 97211
`T: (971) 717-6404
`SParent@biologicaldiversity.org
`
` Counsel for Petitioners
`
`6
`
`
`
`

`

`Case: 19-70115, 06/23/2020, ID: 11731476, DktEntry: 166-1, Page 8 of 8
`
`CERTIFICATE OF COMPLIANCE
`
`I hereby certify that this brief complies with the requirements of
`
`Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
`
`Century Schoolbook font, a proportionally spaced font.
`
`I further certify that this brief complies with Rule 27(d)(2) of the
`
`Federal Rules of Appellate Procedure, because it contains 1,112 words,
`
`excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
`
`according to the count of Microsoft Word.
`
`
`
`
`
` s/ George A Kimbrell
`
`GEORGE A. KIMBRELL
`
`

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