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Geertson Seed Farms v. Johanns

June 24, 2009

GEERTSON SEED FARMS, AN OREGON BUSINESS; TRASK FAMILY SEEDS A SOUTH DAKOTA BUSINESS; CENTER FOR FOOD SAFETY, A WASHINGTON DC NONPROFIT CORP.; BEYOND PESTICIDES, A WASHINGTON DC NONPROFIT CORP.; CORNUCOPIA INSTITUTE, A WISCONSIN NONPROFIT CORP.; DAKOTA RESOURCE COUNCIL, A NORTH DAKOTA NONPROFIT CORP.; NATIONAL FAMILY FARM COALITION, A MICHIGAN NONPROFIT CORP.; SIERRA CLUB, A CALIFORNIA NONPROFIT CORP.; WESTERN ORGANIZATION OF RESOURCE COUNCILS A MONTANA NONPROFIT CORP., PLAINTIFFS-APPELLEES,
v.
MIKE JOHANNS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; STEVE JOHNSON, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; RON DEHAVEN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE ANIMAL PLANT HEALTH AND INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE,DEFENDANTS, FORAGE GENETICS, INC.; JOHN GROVER; DANIEL MADEROS; MARK WATTE, DEFENDANT-INTERVENORS, AND MONSANTO COMPANY, DEFENDANT-INTERVENOR-APPELLANT.
GEERTSON SEED FARMS, AN OREGON BUSINESS; TRASK FAMILY SEEDS A SOUTH DAKATO BUSINESS; CENTER FOR FOOD SAFETY, A WASHINGTON DC NONPROFIT CORP.; BEYOND PESTICIDES, A WASHINGTON DC NONPROFIT CORP.; CORNUCOPIA INSTITUTE, A WISCONSIN NONPROFIT CORP.; DAKOTA RESOURCE COUNCIL, A NORTH DAKOTA NONPROFIT CORP.; NATIONAL FAMILY FARM COALITION, A MICHIGAN NONPROFIT CORP.; SIERRA CLUB, A CALIFORNIA NONPROFIT CORP.; WESTERN ORGANIZATION OF RESOURCE COUNCILS A MONTANA NONPROFIT CORP., PLAINTIFFS-APPELLEES,
v.
MIKE JOHANNS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; STEVE JOHNSON, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; RON DEHAVEN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE ANIMAL PLANT HEALTH AND INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, MONSANTO COMPANY, DEFENDANTS, DEFENDANT-INTERVENOR, AND FORAGE GENETICS, INC.; JOHN GROVER; DANIEL MADEROS; MARK WATTE, DEFENDANT-INTERVENORS-APPELLANTS.
TRASK FAMILY SEEDS A SOUTH DAKOTA BUSINESS; CENTER FOR FOOD SAFETY, A WASHINGTON DC NONPROFIT CORP.; BEYOND PESTICIDES, A WASHINGTON DC NONPROFIT CORP.; CORNUCOPIA INSTITUTE, A WISCONSIN NONPROFIT CORP.; DAKOTA RESOURCE COUNCIL, A NORTH DAKOTA NONPROFIT CORP.; NATIONAL FAMILY FARM COALITION, A MICHIGAN NONPROFIT CORP.; SIERRA CLUB, A CALIFORNIA NONPROFIT CORP.; WESTERN ORGANIZATION OF RESOURCE COUNCILS A MONTANA NONPROFIT CORP.; GEERTSON SEED FARMS, AN OREGON BUSINESS, PLAINTIFFS-APPELLEES, AND GEERTSON SEED FARMS, AN OREGON CORP., PLAINTIFF,
v.
MIKE JOHANNS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; STEVE JOHNSON, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; RON DEHAVEN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE ANIMAL PLANT HEALTH AND INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE; STEVE JOHNSON, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS-APPELLANTS AND MONSANTO COMPANY; FORAGE GENETICS, INC.; JOHN GROVER; DANIEL MADEROS; MARK WATTE, DEFENDANT-INTERVENORS



Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. CV-06-01075-CRB

The opinion of the court was delivered by: Schroeder, Circuit Judge

FOR PUBLICATION

ORDER AND AMENDED OPINION

Argued and Submitted June 10, 2008 -- San Francisco, California

Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges, and Valerie Fairbank,*fn1 District Judge.

Opinion by Judge Schroeder Dissent by Judge N. Smith

ORDER

The opinion and dissent filed September 2, 2008, and appearing at 541 F.3d 938 (9th Cir. 2008), are hereby amended. The amended opinion and dissent are filed concurrently with this Order.

With these amendments, Judges Schroeder and Fairbank have voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. Judge N.R. Smith votes to grant the petition for panel rehearing and rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for rehearing will be accepted.

OPINION

The Monsanto Company ("Monsanto") is a large-scale manufacturer of chemical products, including herbicides and pesticides. In the 1990s it began developing a variety of alfalfa that would be resistant to one of its leading herbicides. The United States Department of Agriculture, through the Animal and Plant Health Inspection Service ("APHIS"), approved the genetically modified alfalfa in 2005.

This is an appeal from an injunction entered by the district court enjoining future planting of Monsanto alfalfa, called "Roundup Ready alfalfa," pending the preparation by APHIS of an environmental impact statement ("EIS"). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear. Monsanto and its licensee, Forage Genetics, Inc. ("Forage Genetics"), intervened on the side of the government defendants. Monsanto, Forage Genetics, and the government pursue this appeal.

There are no issues of law and we therefore review for abuse of discretion. See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir. 2002). We affirm because the district court did not abuse its discretion in entering the injunction after holding one hearing on the nature of the violation of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(C), and two hearings on the scope of injunctive relief, as well as reviewing extensive documentary submissions relating to an appropriate remedy. The injunction is limited in duration to the time necessary to complete the EIS. The existence of the NEPA violation is not disputed on appeal.

Background

Roundup Ready alfalfa is an alfalfa crop that was genetically engineered by Monsanto to be tolerant of glyphosate, which is the active ingredient in its herbicide Roundup. The particular lines of genetically engineered alfalfa that are at issue here were designated as events J101 and J163 ("Roundup Ready alfalfa"). Monsanto owns the intellectual property rights to Roundup Ready alfalfa and licenses the technology to Forage Genetics, who is the exclusive developer of Roundup Ready alfalfa seed.

APHIS, a division of the United States Department of Agriculture, has the authority to regulate "the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests," or "regulated articles." See 7 C.F.R. § 340.0(a)(2) & n.1. APHIS initially classified Roundup Ready alfalfa as a regulated article. Monsanto submitted a petition in April 2004 requesting non-regulated status for events J101 and J163.

APHIS had three options: it could take no action, in which case Roundup Ready alfalfa would continue to be a regulated article; it could unconditionally deregulate Roundup Ready alfalfa, which would require the agency to make a finding of no significant impact; or it could partially deregulate Roundup Ready alfalfa, either by approving some but not all ...


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