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`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 1 of 6
`
`No. 19-70115
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
`
`Petitioners,
`
`v.
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents,
`
`AND
`
`MONSANTO COMPANY, BASF CORPORATION AND
`E. I. DU PONT DE NEMOURS AND COMPANY,
`Intervenor-Respondents.
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`REPLY OF E.I. du PONT de NEMOURS AND COMPANY IN RESPONSE
`TO PETITIONERS’ OPPOSITION TO BASF CORPORATION’S CROSS-
`MOTION TO RECALL AND STAY THE MANDATE
`
`Kirsten L. Nathanson
`David Y. Chung
`Amanda S. Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`Counsel for Intervenor-Respondent E.I.
`du Pont de Nemours and Company
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 2 of 6
`
`E. I. du Pont de Nemours and Company (“EID”) files this reply solely to
`
`address the arguments in Petitioners’ opposition that the Court should limit or
`
`abridge EID’s procedural rights as an intervenor. For the reasons set forth below
`
`(and irrespective of whether the mandate is recalled), EID’s right to participate in
`
`full in this proceeding should not be limited in any way.
`
`ARGUMENT
`
`Petitioners overreach in their response to BASF’s motion to recall the
`
`mandate (ECF 166-1), contending (at 2-4) that, if the Court recalls the mandate, it
`
`should also limit the scope of EID’s participation in any upcoming rehearing
`
`proceedings, and requesting (at 4-6) that the Court impose joint briefing
`
`requirements on all Respondent-side parties. Those attempts to limit EID’s
`
`participation in the remainder of this matter are misplaced.
`
`This Court granted EID’s motion to intervene with no procedural or
`
`substantive limitations (ECF 162). EID thus has full party status in this proceeding,
`
`including the ability to file a petition for rehearing on the Court’s June 3, 2020
`
`Opinion and Judgment. See, e.g., Fed. R. App. P. 35(b) (a “party” may petition for
`
`en banc rehearing); and Fed. R. App. P. 40(a)(1) (“any party” may petition for
`
`panel rehearing). There is no legal or logical reason that EID should be limited in
`
`terms of the content of any rehearing petition it may file, or required to file jointly
`
`with other parties even if its interests and views do not sufficiently align to do so.
`
`1
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 3 of 6
`
`Petitioners misread Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007), to
`
`suggest that EID should be limited in any rehearing petition it files to addressing
`
`the issue that motivated its intervention: the scope of the Court’s merits decision
`
`(i.e., its application of the judgment to EID’s FeXapan product). But in Apoliona,
`
`after granting intervention, this Court simply lodged the petition for rehearing that
`
`Hawai’i had requested leave to file. Id. at 966. And the Court said nothing that
`
`suggests that a post-decision Intervenor should be barred from addressing any
`
`issues it deems important to protect its interests. The remainder of the cases cited
`
`by Petitioners (at 3) stand simply for the undisputed proposition that any rehearing
`
`petition must be consistent with federal appellate rules.
`
`As a matter of logic, the issuance of the mandate has no impact on the
`
`deadline for any rehearing petitions, or on the rights of parties to file individual
`
`petitions rather than joint petitions. Compare Fed. R. App. P. 41 with Fed. R. App.
`
`P. 35, 40 (illustrating no relationship between the mandate and the right to file
`
`rehearing petitions, and imposing no limitations on post-mandate petitions). As
`
`explained in EID’s motion to intervene (ECF 129-1), EID has a unique property
`
`interest in its FeXapan registration that is distinct from the interests of every other
`
`Respondent party, including BASF. It should thus be permitted, consistent with its
`
`status as a party to this litigation, to submit the filings and raise the arguments it
`
`deems necessary to advocate for its rights and interests.
`
`2
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 4 of 6
`
`While, as indicated in its Reply in support of intervention (ECF 155 at 15),
`
`EID intends to collaborate with its fellow Respondent-Intervenors and file joint
`
`briefs where possible, this Court should not order it to do so—and it certainly
`
`should not order EID to file jointly with EPA, which does not share Respondent-
`
`Intervenors’ interests in important respects, as EID explained in its Motion for
`
`Leave to Intervene (ECF 129-1 at 14-15).
`
`In short, the pending motion to recall the mandate bears no relation to any
`
`potential rehearing petitions that EID or other parties may file, and provides no
`
`reason for the Court to constrain EID’s rights to participate in these proceedings
`
`fully and independently in order to protect its interests, including by filing a
`
`petition for rehearing on the issues it deems appropriate, within the bounds of Fed.
`
`R. App. P. 35, 40. This Court should reject Petitioners’ demands to the contrary.
`
`
`
`June 24, 2020
`
`Respectfully submitted,
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`David Y. Chung
`Amanda Berman
`Tyler A. O’Connor
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 624-2887
`knathanson@crowell.com
`Counsel for Intervenor-Respondent E.I.
`du Pont de Nemours and Company
`
`3
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 5 of 6
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`The foregoing reply complies with the type-volume limitation of Fed. R.
`
`App. P. 27(d)(2)(A) because it contains 656 words, excluding those parts exempted
`
`by Fed. R. App. P. 32(f).
`
`
`
`This reply also complies with the typeface requirements of Fed. R. App. P.
`
`32(a)(5)(A) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it
`
`has been prepared in a proportionally spaced typeface using Microsoft Word in 14-
`
`point, Times New Roman Font.
`
`
`
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`
`
`DCACTIVE-54926091.3
`
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732709, DktEntry: 167, Page 6 of 6
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 24, 2020, I filed the foregoing reply with the
`
`Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
`
`using the appellate CM/ECF system.
`
`I certify that all participants in the case are registered CM/ECF users and
`
`that service will be accomplished by the appellate CM/ECF system.
`
`
`
`/s/ Kirsten L. Nathanson
`Kirsten L. Nathanson
`
`
`DCACTIVE-54926091.3
`
`
`

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