1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Center for Biological Diversity, et al., No. CV-20-00555-TUC-DCB
10 Plaintiffs, ORDER
11 v.
12 United States Environmental Protection Agency, et al., 13 Defendants. 14 And 15 Bayer CropScience LP, et al., 16
17 Defendant-Intervenors. 18 This action was filed on December 23, 2020, challenging the Defendant EPA’s 19 October 27, 2020 issuance of registrations under the Federal Insecticide, Fungicide, and 20 Rodenticide Act (FIFRA) approving three pesticide products: the “Engenia Herbicide 21 Registration,” the “A21472 Plus VaporGrip Technology Registration,” and the 22 “XtendiMax with VaporGrip Technology Registration” (collectively, the “Registrations”). 23 The Plaintiffs challenge the EPA’s third attempt to register pesticide products containing 24 the chemical dicamba to spray over-the-top of cotton and soybeans genetically engineered 25 to withstand this application under FIFRA. 7 U.S.C. § 136n. They also allege the EPA 2020 26 dicamba registrations violated the Administrative Procedures Act (APA) and Endangered 27 Species Act (ESA). 28 1 On May 10, 2020, the Court granted, without objection, intervention for the 2 manufacturers of the pesticide products, and on May 21, 2020, the Intervenors filed a Joint 3 Motion to Transfer Venue (Doc. 30) to the District Court for the District of Columbia, 4 where an action is pending which was brought on behalf of end-users, cotton and soybean 5 farmers (Trade Associations), challenging the EPA registrations for the opposite reason 6 that it is too restrictive. Another way to describe the two cases is that the D.C case picks 7 up where this case leaves off, if the 2020 registrations are not invalidated here.1 8 Both the Intervenors and the Plaintiffs accuse each other of forum shopping. 9 According to the Intervenors, “Plaintiffs chose to bring this case in Arizona – rather than 10 in many other courts with a greater connection to the underlying facts – because they 11 believe the Ninth Circuit is the most favorable forum for their claims.” (Motion Re: Venue 12 (Doc. 30) at 12.) This is undoubtedly true since Plaintiffs prevailed here within the past 13 year on a similar challenge to earlier dicamba registrations. The Plaintiffs charge the 14 reverse, accusing the D.C. Circuit filing as being a means to escape review in the forum 15 that is the most familiar with the subject matter of the litigation, the Ninth Circuit. It is, 16 however, undisputed that both cases are filed in proper venues. 17 On June 18, 2020, the Plaintiffs filed a Motion to Stay (Doc. 42) resolution of the 18 venue issue because there is a jurisdictional challenge pending in the District of Columbia 19 circuit court which may affect both cases. According to the Plaintiffs, the EPA failed to 20 provide notice and comment on the 2020 registrations in violation of FIFRA. See 21 (Amended Complaint (FAC) (Doc. 28) ¶¶ 379-83.) This created a jurisdictional ambiguity 22 because FIFRA provides exclusive jurisdiction in courts of appeals after a public hearing, 23 which has been interpreted to include opportunity for notice and comment. 7 U.S.C. § 24 136n(b); Nat’l Family Farm Coal. v. EPA (NFFC I), No. 17-70196 (9th Cir. Jan. 20, 2017); 25 747 F. App’x 646 (9th Cir. 2019) (petition dismissed as moot due to EPA’s 2018 decision). 26 Plaintiffs proceeded under this jurisdictional provision a year ago and challenged 27 the EPA’s 2016 dicamba registration, 2018 extension of regisgration, decisions in the Ninth
28 1 Without the transfer, there will be no party in the D.C. district court arguing that the 2020 registrations are invalid for any reasons asserted in this case. 1 Circuit and prevailed. Nat’l Family Farm Coal. v. EPA (NFFC II), 960 F.3d, 1120 (9th Cir. 2 2020). In NFFC II, the Ninth Circuit Court of Appeals found it had exclusive jurisdiction 3 because the EPA previously held notice and comment on the dicamba new uses before the 4 2016 registration, despite the EPA not holding notice and comment before the 2018 5 extensions of the 2016 registrations. Id. at 1131-32 (holding jurisdiction proper for the 6 2018 registration). Plaintiff prevailed, “[a]fter a detailed review and application of the 7 voluminous administrative record, the same Ninth Circuit panel that heard NFFC I held 8 that the EPA violated FIFRA in six different ways and vacated the new use registrations. 9 Id. at 1144-45 (summarizing holdings and vacating); see also FAC ¶¶ 191-231 (detailing 10 the Ninth Circuit’s decision in NFFC II).” (Motion to Stay (Doc. 42) at 4.) 11 Plaintiffs filed this case and filed a “protective” petition in the Ninth Circuit. 12 According to Plaintiffs, “the crux of this case will undoubtedly be if EPA’s latest 13 registrations actually address the deficiencies held by the Ninth Circuit last June.” (Motion 14 to Stay (Doc. 42) at 4 (citing [FAC] ¶¶ 238-312. The Intervenors agree, describing the EPA 15 as concluding the 2020 registrations “would address the Ninth Circuit’s concerns with the 16 prior registrations of differently labeled XtendiMax and Engenia dicamba products, none 17 of which mandated use of a VRA [Volatility Reduction Adjuvant] or of buffer distances 18 anywhere near the current size.” (Motion Re: Venue (Doc. 30) at 14 (citing 2020 19 Registration at 17. 30 at 14)). 20 “However, because EPA proclaimed loudly in its 2020 registrations that it had not 21 provided opportunity for notice and comment on the 2020 registrations, clearly stating in 22 the decision document its own view that district court jurisdiction was appropriate and 23 thereby muddying which court has jurisdiction, Plaintiffs also filed a complaint in this 24 Court pursuant to FIFRA’s provision for judicial review in district court. 7 U.S.C. § 25 136n(a); Complaint (Doc. 1).” (Motion to Stay (Doc. 42) at 4.) 26 At the same time, Trade Associations, agrochemical lobbying groups, American 27 Soybean Association and Plains Cotton Growers, closely affiliated with Intervenors, chose 28 the District of Columbia to challenge the flip side of the 2020 registrations as being too 1 restrictive, too costly, and unjustified by the scientific record. Like Plaintiffs, they filed in 2 the District Court for the District of Columbia and filed “protective” petitions in the D.C. 3 Circuit and 5th Circuit. 4 All the filings in the courts of appeals were “protective” to preserve the parties’ 5 rights to proceed in the court of appeals if it is later determined that the district court filings 6 were a mistake. The multiple filings in the appellate courts triggered the MDL lottery, with 7 the prize going to the D.C. Circuit Court. All the appellate cases, including the one filed in 8 this circuit, have been transferred there.2 The jurisdictional positions of the various parties, 9 including the Intervenors, have been briefed and are ripe for resolution in the D.C. Circuit 10 Court. 11 The D.C. Circuit Court will decide either: 1) to transfer the cases back to the Ninth 12 Circuit and defer the issue of district or appellate jurisdiction to that court; 2) to decide the 13 jurisdictional issue, holding that exclusive jurisdiction lies properly within the courts of 14 appeals and then transfer the cases to the Ninth Circuit; 3) to decide the jurisdictional issue, 15 holding that jurisdiction is proper in the district courts and dismiss all the petitions for 16 review; or 4) to stay the petitions for review pending district court proceedings.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Center for Biological Diversity, et al., No. CV-20-00555-TUC-DCB
10 Plaintiffs, ORDER
11 v.
12 United States Environmental Protection Agency, et al., 13 Defendants. 14 And 15 Bayer CropScience LP, et al., 16
17 Defendant-Intervenors. 18 This action was filed on December 23, 2020, challenging the Defendant EPA’s 19 October 27, 2020 issuance of registrations under the Federal Insecticide, Fungicide, and 20 Rodenticide Act (FIFRA) approving three pesticide products: the “Engenia Herbicide 21 Registration,” the “A21472 Plus VaporGrip Technology Registration,” and the 22 “XtendiMax with VaporGrip Technology Registration” (collectively, the “Registrations”). 23 The Plaintiffs challenge the EPA’s third attempt to register pesticide products containing 24 the chemical dicamba to spray over-the-top of cotton and soybeans genetically engineered 25 to withstand this application under FIFRA. 7 U.S.C. § 136n. They also allege the EPA 2020 26 dicamba registrations violated the Administrative Procedures Act (APA) and Endangered 27 Species Act (ESA). 28 1 On May 10, 2020, the Court granted, without objection, intervention for the 2 manufacturers of the pesticide products, and on May 21, 2020, the Intervenors filed a Joint 3 Motion to Transfer Venue (Doc. 30) to the District Court for the District of Columbia, 4 where an action is pending which was brought on behalf of end-users, cotton and soybean 5 farmers (Trade Associations), challenging the EPA registrations for the opposite reason 6 that it is too restrictive. Another way to describe the two cases is that the D.C case picks 7 up where this case leaves off, if the 2020 registrations are not invalidated here.1 8 Both the Intervenors and the Plaintiffs accuse each other of forum shopping. 9 According to the Intervenors, “Plaintiffs chose to bring this case in Arizona – rather than 10 in many other courts with a greater connection to the underlying facts – because they 11 believe the Ninth Circuit is the most favorable forum for their claims.” (Motion Re: Venue 12 (Doc. 30) at 12.) This is undoubtedly true since Plaintiffs prevailed here within the past 13 year on a similar challenge to earlier dicamba registrations. The Plaintiffs charge the 14 reverse, accusing the D.C. Circuit filing as being a means to escape review in the forum 15 that is the most familiar with the subject matter of the litigation, the Ninth Circuit. It is, 16 however, undisputed that both cases are filed in proper venues. 17 On June 18, 2020, the Plaintiffs filed a Motion to Stay (Doc. 42) resolution of the 18 venue issue because there is a jurisdictional challenge pending in the District of Columbia 19 circuit court which may affect both cases. According to the Plaintiffs, the EPA failed to 20 provide notice and comment on the 2020 registrations in violation of FIFRA. See 21 (Amended Complaint (FAC) (Doc. 28) ¶¶ 379-83.) This created a jurisdictional ambiguity 22 because FIFRA provides exclusive jurisdiction in courts of appeals after a public hearing, 23 which has been interpreted to include opportunity for notice and comment. 7 U.S.C. § 24 136n(b); Nat’l Family Farm Coal. v. EPA (NFFC I), No. 17-70196 (9th Cir. Jan. 20, 2017); 25 747 F. App’x 646 (9th Cir. 2019) (petition dismissed as moot due to EPA’s 2018 decision). 26 Plaintiffs proceeded under this jurisdictional provision a year ago and challenged 27 the EPA’s 2016 dicamba registration, 2018 extension of regisgration, decisions in the Ninth
28 1 Without the transfer, there will be no party in the D.C. district court arguing that the 2020 registrations are invalid for any reasons asserted in this case. 1 Circuit and prevailed. Nat’l Family Farm Coal. v. EPA (NFFC II), 960 F.3d, 1120 (9th Cir. 2 2020). In NFFC II, the Ninth Circuit Court of Appeals found it had exclusive jurisdiction 3 because the EPA previously held notice and comment on the dicamba new uses before the 4 2016 registration, despite the EPA not holding notice and comment before the 2018 5 extensions of the 2016 registrations. Id. at 1131-32 (holding jurisdiction proper for the 6 2018 registration). Plaintiff prevailed, “[a]fter a detailed review and application of the 7 voluminous administrative record, the same Ninth Circuit panel that heard NFFC I held 8 that the EPA violated FIFRA in six different ways and vacated the new use registrations. 9 Id. at 1144-45 (summarizing holdings and vacating); see also FAC ¶¶ 191-231 (detailing 10 the Ninth Circuit’s decision in NFFC II).” (Motion to Stay (Doc. 42) at 4.) 11 Plaintiffs filed this case and filed a “protective” petition in the Ninth Circuit. 12 According to Plaintiffs, “the crux of this case will undoubtedly be if EPA’s latest 13 registrations actually address the deficiencies held by the Ninth Circuit last June.” (Motion 14 to Stay (Doc. 42) at 4 (citing [FAC] ¶¶ 238-312. The Intervenors agree, describing the EPA 15 as concluding the 2020 registrations “would address the Ninth Circuit’s concerns with the 16 prior registrations of differently labeled XtendiMax and Engenia dicamba products, none 17 of which mandated use of a VRA [Volatility Reduction Adjuvant] or of buffer distances 18 anywhere near the current size.” (Motion Re: Venue (Doc. 30) at 14 (citing 2020 19 Registration at 17. 30 at 14)). 20 “However, because EPA proclaimed loudly in its 2020 registrations that it had not 21 provided opportunity for notice and comment on the 2020 registrations, clearly stating in 22 the decision document its own view that district court jurisdiction was appropriate and 23 thereby muddying which court has jurisdiction, Plaintiffs also filed a complaint in this 24 Court pursuant to FIFRA’s provision for judicial review in district court. 7 U.S.C. § 25 136n(a); Complaint (Doc. 1).” (Motion to Stay (Doc. 42) at 4.) 26 At the same time, Trade Associations, agrochemical lobbying groups, American 27 Soybean Association and Plains Cotton Growers, closely affiliated with Intervenors, chose 28 the District of Columbia to challenge the flip side of the 2020 registrations as being too 1 restrictive, too costly, and unjustified by the scientific record. Like Plaintiffs, they filed in 2 the District Court for the District of Columbia and filed “protective” petitions in the D.C. 3 Circuit and 5th Circuit. 4 All the filings in the courts of appeals were “protective” to preserve the parties’ 5 rights to proceed in the court of appeals if it is later determined that the district court filings 6 were a mistake. The multiple filings in the appellate courts triggered the MDL lottery, with 7 the prize going to the D.C. Circuit Court. All the appellate cases, including the one filed in 8 this circuit, have been transferred there.2 The jurisdictional positions of the various parties, 9 including the Intervenors, have been briefed and are ripe for resolution in the D.C. Circuit 10 Court. 11 The D.C. Circuit Court will decide either: 1) to transfer the cases back to the Ninth 12 Circuit and defer the issue of district or appellate jurisdiction to that court; 2) to decide the 13 jurisdictional issue, holding that exclusive jurisdiction lies properly within the courts of 14 appeals and then transfer the cases to the Ninth Circuit; 3) to decide the jurisdictional issue, 15 holding that jurisdiction is proper in the district courts and dismiss all the petitions for 16 review; or 4) to stay the petitions for review pending district court proceedings. 17 The EPA has moved to dismiss the consolidated appellate cases because the courts 18 of appeals do not have jurisdiction under FIFRA as it did not issue the 2020 registrations 19 following a public hearing. The Plaintiffs argue the reverse and that review is proper in the 20 Ninth Circuit. The Intervenors argue that the D.C. Circuit should stay its case pending the 21 district court litigation. 22 This is the backstory to Plaintiffs’ motion to stay because if either the D.C. Circuit 23 or the Ninth Circuit decides that a court of appeals has exclusive jurisdiction over EPA’s 24 2020 registrations, then any further proceedings in this Court are both a waste of the parties’ 25 and the Court’s resources. The EPA asks the Court to decide the venue question or 26 alternatively grant a short extension of time to see if the D.C. Circuit Court resolves the 27 jurisdictional issues. Intervenors do “not object to a limited stay of this case until a D.C.
28 2 Prior to the transfer, the Ninth Circuit granted Plaintiffs’ motion to assign their petition to the same panel that decided NFFC II. 1 Circuit motions panel indicates whether it will decide the jurisdictional question—which 2 could happen in the coming weeks.” (Response (Doc. 47) at 13.) 3 While a limited stay offers the potential to provide additional certainty without 4 indefinitely delaying the resolution of this case, the D.C. Circuit may not rule on the 5 jurisdictional questions. It may transfer the question to the Ninth Circuit or refer the EPA’s 6 motion to dismiss to a merits panel. Under such circumstances, delay could be extensive, 7 and it may be more expeditious for the district courts to resolve the challenges to the 2020 8 dicamba registrations. If jurisdiction were ultimately found to lie in the appellate courts, 9 this approach while expeditious would ultimately have been a waste of this Court’s 10 resources. 11 Intervenors point out that the Plaintiffs have asserted jurisdiction exists in this Court 12 to resolve the merits of the dicamba registration challenges. (Response (Doc. 47) at 14 13 (citing FAC ¶ 25)). The Government points out that in spite of this admission, they[, 14 Plaintiffs,] claim in their D.C. Circuit brief that the public comment period for EPA’s 2016 15 decisions on dicamba-based pesticides gives rise to direct appellate jurisdiction over the 16 challenges to the 2020 Registrations. . . . Environmental Groups have not yet explained 17 their plans for their case in this Court, now that they have argued that jurisdiction lies in 18 the circuit courts.” (Gov’t Resp. Re: Venue (Doc. 43) at 5 (citing Environmental Groups’ 19 Resp. to EPA Mot. to Dismiss, Am. Soybean Ass’n, No. 20-1441, ECF No. 1898988 at 10 20 (May 17, 2021)). 21 The Court points out that consent of the parties to a suit does not give jurisdiction to 22 the courts of the United States. Ry. Co. v. Ramsey, 89 U.S. 322, 323 (1874). “[S]ubject- 23 matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited 24 or waived,” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 25 (2002); subject matter jurisdiction cannot be created by any act of the parties, Ins. Corp. of 26 Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702, (1982). “Moreover, courts, 27 including this Court, have an independent obligation to determine whether subject-matter 28 jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H 1 Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 2 (1999)). Where it does not exist, the action must be dismissed. Id. at 514. 3 The Court grants the stay and in the event that jurisdiction between the district and 4 appellate courts is not determined by the Circuit Court for the District of Columbia, soon, 5 this Court shall call for full briefing on the question of its jurisdiction to preside over this 6 case and to resolve any of the matters pending before it, including the currently pending 7 motion to change venue. 8 On June 29, 2021, a case management scheduling conference was held in this case.3 9 The parties agreed that the administrative Index and record could be simultaneously filed 10 in both district court cases, with the Index being filed on July 19, 2021. Thereafter, the 11 government sought 90 days, inclusive or exclusive of 21 days to prepare a Protective Order, 12 before filing the administrative record. The parties all agreed the case will be resolved by 13 dispositive motion and asked for an extension of the 30-day time frame governing such 14 motions to 45 days. This is the basic framework of the case management schedule that this 15 Court will set in the event the case proceeds here. 16 The Court anticipates the parties will address supplementing the administrative 17 record. This issue may be related to the jurisdictional question of whether the 2020 18 registrations stand alone on a new record or are continuations of the 2016 and 2018 19 registrations. The former may suggest jurisdiction exists in this Court, while the latter may 20 suggest not. In the event the question of any supplemental record is related to this Court’s 21 jurisdiction, it shall be briefed if jurisdiction is briefed for this Court. 22 Accordingly, 23 IT IS ORDERED that the Motion to Stay (Doc. 42) is GRANTED for 90 days or 24 until the D.C. Circuit motions panel indicates whether it will decide or decides the 25 jurisdictional question, whichever comes first.
26 3 While the D.C. district court case may have been filed first, its progress has been impeded by motion work, including challenges by the Government that the Trade 27 Associations mis-framed ESA claims as arising under the APA and failed to give proper notice to support the ESA claims raised in the D.C. district court case, which differ from 28 those raised here. 1 IT IS FURTHER ORDERED that the Plaintiffs shall, thereafter, file a status report with this Court requesting further stay of the matter or that the case proceed here and provide supporting argument even if all parties agree to one course of action. The 4|| Defendant and Intervenors may file any objections within 14 days, and Plaintiffs may reply. 5 IT IS FURTHER ORDERED that the stay does not apply to the deadline for filing 6|| of the Administrative Record Index. The Court will set the case management deadlines to run from disposition of the pending Motion for Change of Venue (Doc. 30), in the event 8 || the case proceeds here. 9 Dated this 9th day of July, 2021. 10 11
° Honorable David C. Byt 14 United StatesPrstrict Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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