Natural Grocers v. Perdue

Opinion

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 NATURAL GROCERS, et al., Case No. 20-cv-05151-JD

5 Plaintiffs, ORDER RE MOTION TO INTERVENE v. 6 Re: Dkt. No. 29 7 SONNY PERDUE, et al., Defendants. 8

9 10 For the request to intervene under Federal Rule of Civil Procedure 24 by the agricultural 11 trade associations and groups, Dkt. No. 29, intervention as of right is denied. The Court assumes 12 that the first three elements of the pertinent four-factor test have been satisfied. See Oakland Bulk 13 & Oversized Terminal LLC v. City of Oakland, 960 F.3d 603, 620 (9th Cir. 2020). With respect to 14 the fourth element, the proposed intervenors have not shown that they will not be adequately 15 represented by existing parties, namely the United States defendants. See id. 16 Because the proposed intervenors and the government share the same ultimate objective of 17 upholding the National Bioengineered Food Disclosure Standard, 83 Fed. Reg 65,814 et seq. (Dec. 18 21, 2018), and the government is already acting in this litigation on behalf of that common 19 interest, the proposed intervenors were required to make a “very compelling showing” based on 20 evidence to rebut the presumption of adequacy. Id. (quoting Arakaki v. Cayetano, 324 F.3d 1078, 21 1086 (9th Cir. 2003)). The proposed intervenors did not proffer any facts to that end, and 22 certainly did not make a compelling showing of inadequacy. This is not a case where the record 23 demonstrates a potential unwillingness or reluctance on the government’s part to give its all in 24 seeking to uphold the challenged rulemaking. See Citizens for Balanced Use v. Montana 25 Wilderness Ass’n, 647 F.3d 893, 899-900 (9th Cir. 2011). 26 Permissive intervention is granted in the Court’s discretion. Fed. R. Civ. P. 24(b)(1)(B). 27 For the most part, plaintiffs and the United States do not object to permissive intervention. See 1 satisfied, and that potential undue delay or unfair prejudice to the original parties can be managed 2 || by conditions, and so are not a reason to deny permissive intervention. See Fed. R. Civ. P. 3 24(b)(3); Freedom from Religion Found., Inc. v. Geither, 644 F.3d 836, 843 (9th Cir. 2011) 4 (permissive intervention elements); City of Oakland, 960 F.3d at 619-20 (Court has “wide 5 latitude” to impose conditions on permissive intervention). 6 The agricultural groups may address all the claims in the complaint. To avoid duplicative 7 arguments, the agricultural groups may file a motion or response to a motion seven court days 8 || after the government’s filing. They may raise only new or different arguments, and may not 9 || repeat the arguments made by the government. All motion filings by intervenors are limited to 15 10 || pages unless the Court has granted a request for additional pages prior to the day the filing is due. 11 Intervenors are advised that additional pages will be permitted sparingly and only on a showing of 12 || good cause. In the unlikely event that discovery is warranted in this administrative record case, 5 13 intervenors may not propound any discovery requests without the Court’s prior approval. 14 The parties and intervenors are directed to meet and confer on a proposed scheduling order 3 15 || that accounts for the timing of intervenors’ motion filings. They should also propose an agreed- 16 || upon number of additional pages for plaintiffs to respond to intervenors’ filings. The parties are 3 17 advised that cross-motions for summary judgment are disfavored because they needlessly multiply 18 the proceedings with little substantive value. The proposed scheduling order should contemplate 19 one summary judgment motion by plaintiffs, who carry the burden of persuasion, and a response 20 || by the government and/or intervenors. 21 For all filings, the parties and interveners are directed to submit one brief per side to the 22 || fullest extent possible. The government is not required to pre-screen its proposed filings with the 23 || intervenors, or otherwise share its litigation strategies, in advance of a filing. The proposed 24 || scheduling order is due by July 19, 2021. 25 IT IS SO ORDERED. 26 Dated: June 29, 2021 27 JAMES PONATO 28 United States District Judge