Geertson Seed Farms v. Johanns

• Decision Date: 02 September 2008
• Docket Number: No. 07-16492.,No. 07-16458.,No. 07-16725.,07-16458.,07-16492.,07-16725.
• Citation: 541 F.3d 938
• Parties: 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 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, Monsanto Company, 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; Defendants-Appellants, and Monsanto Company; Forage Genetics, Inc.; John Grover; Daniel Maderos; Mark Watte, Defendant-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 938

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 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,

Monsanto Company, 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; Defendants-Appellants, and Monsanto Company; Forage Genetics, Inc.; John Grover; Daniel Maderos; Mark Watte, Defendant-Intervenors.

No. 07-16458.

No. 07-16492.

No. 07-16725.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2008.

Filed September 2, 2008.

George Kimbrell, Washington, D.C., for the plaintiffs-appellees.

Marc Kesselman, Washington, D.C., for the defendants-intervenors/appellants Government.

Maureen Mahoney, Washington, D.C., for the defendants-intervenors/appellants Monsanto et al.

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.

Before: MARY M. SCHROEDER and N. RANDY SMITH, Circuit Judges, and VALERIE FAIRBANK,^* District Judge.

Opinion by Judge SCHROEDER; Dissent by Judge N. RANDY SMITH.

SCHROEDER, Circuit Judge:

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 nonregulated 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 of the lines involved, or by approving the petition but imposing geographic restrictions.

APHIS published a notice in the Federal Register in November 2004 advising the public of Monsanto's petition and soliciting comments. It explained that APHIS had prepared an Environmental Assessment ("EA") in accordance with NEPA and its implementing regulations. In the EA, APHIS explained that alfalfa is pollinated by insects, primarily bees, and that insect pollination has been documented as occurring up to 2 miles from the pollen source. With regard to the threat of possible genetic contamination of non-genetically engineered alfalfa, it explained that the National Organic Program mandates buffer zones around organic production operations, the size of which are decided by the organic producer and the certifying agent on a case-by-case basis. The EA concluded that it was therefore unlikely that Roundup Ready alfalfa would have a significant impact on organic farming.

APHIS received 663 comments, 520 of which opposed the petition and 137 of which supported it. Most of the commenting alfalfa growers and seed producers supported it because they said there was a demand for weed-free alfalfa, and Roundup Ready alfalfa would provide farmers a new option for weed control by allowing farmers to apply herbicide after weeds have germinated. Most of the academic professionals, agricultural support industries, and growers associations who commented supported the petition as well. Opponents of the petition, who included organic and conventional alfalfa growers, cited concerns that inadvertent gene transmission would occur, and that foreign and domestic markets may not accept products that cannot be guaranteed to be non-genetically engineered. They urged a full environmental evaluation through an EIS that would analyze the environmental effects of all the alternatives. See Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 658, 688 (9th Cir.2008) ("NEPA's procedural requirements mandate that an agency take a `hard look' at the environmental consequences of its actions.").

On the basis of the EA and after considering the comments received, APHIS in June 2005 made a finding of no significant impact. See 70 Fed.Reg. 36,917, 36,918 (June 27, 2005). It therefore concluded that it did not need to prepare an EIS, and it unconditionally deregulated Roundup Ready alfalfa.

Plaintiffs filed this action in February 2006, alleging violations of NEPA and other federal statutes. The district court first considered whether APHIS had violated NEPA. After a hearing on plaintiffs' and defendants' motions for summary judgment, the district court granted plaintiffs' motion in February 2007, holding that APHIS had violated NEPA by deregulating Roundup Ready alfalfa without first preparing an EIS. The court ruled APHIS had failed to take the required "hard look" at whether and to what extent the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of non-genetically engineered alfalfa. The district court then turned to the issue of an appropriate remedy for the violation.

Monsanto and...