Case3:15-cv JCS Document21 Filed05/06/15 Page1 of 19

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1 Case:-cv-00-JCS Document Filed0/0/ Page of 0 Kirsten L. Nathanson (DC Bar #)* Thomas Lundquist (DC Bar # )* Sherrie A. Armstrong (DC Bar #00)* 00 Pennsylvania Avenue, NW Washington, DC 000 T: (0) -00 F:(0) - Janine L. Scancarelli (SBN 0) Battery Street, rd Floor San Francisco, CA T: () - F: () - *Application for admission pro hac vice to be submitted Attorneys for Proposed Intervenor-Defendant CropLife America UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, v. Plaintiff, U.S. DEPARTMENT OF THE INTERIOR, et al., Case No. :-cv-00-jcs NOTICE OF MOTION AND MOTION OF CROPLIFE AMERICA TO INTERVENE AS DEFENDANT AND MEMORANDUM IN SUPPORT (Hon. Joseph C. Spero) and Defendants, Date: June, 0 Time: :0 am Place: Courtroom G, th Floor 0 CROPLIFE AMERICA, Proposed Intervenor- Defendant. MOTION TO INTERVENE, CASE NO. :-CV-00

2 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 NOTICE OF MOTION Please take notice that on June, 0, or as soon thereafter as this matter may be heard, in the Courtroom of the Honorable Joseph C. Spero (Courtroom G, th Floor), CropLife America ( CropLife ) will and hereby does respectfully move to intervene as of right as a defendant in the above-entitled action pursuant to Federal Rule of Civil Procedure (a)() and to file the proposed answer submitted contemporaneously with this motion. In the alternative, CropLife seeks permission to intervene under Rule (b)() to protect its members vital interests in their registration, sale, and distribution of pesticide products. This Motion is based upon this notice of Motion and Motion to Intervene, the Memorandum in Support thereof, Exhibit A, the Proposed Order, and the Proposed Answer filed pursuant to Federal Rules of Civil Procedure and (c), all pleadings and papers filed in this action, and upon such other matters the Court may entertain. STATEMENT OF RELIEF SOUGHT As explained in the accompanying memorandum of points and authorities, CropLife (which was granted intervention in related previous litigation regarding the same challenged products and similar legal claims) seeks to intervene as of right as a defendant under Federal Rule of Civil Procedure (a)() because its members have substantial interests in the property that is the subject of this case, and those interests are not adequately represented by the existing parties. In the alternative, CropLife seeks permission to intervene under Rule (b)() because its members are obviously affected by this litigation aimed at restricting or suspending their pesticide registrations. CropLife also seeks to file the proposed answer submitted with this motion under Rule (c). -i- MOTION TO INTERVENE, CASE NO. :-CV-00

3 Case:-cv-00-JCS Document Filed0/0/ Page of TABLE OF CONTENTS 0 0 NOTICE OF MOTION... i. STATEMENT OF RELIEF SOUGHT... ii. MEMORANDUM OF POINTS AND AUTHORITIES... INTRODUCTION... STATEMENT OF THE ISSUE TO BE DECIDED... BACKGROUND... A. REGULATORY FRAMEWORK.... The Federal Insecticide, Fungicide, and Rodenticide Act ( FIFRA ).... The Endangered Species Act ( ESA )... B. CROPLIFE AMERICA AND ITS INTEREST IN THIS LITIGATION... C. PROCEDURAL HISTORY... ARGUMENT... I. CROPLIFE IS ENTITLED TO INTERVENE AS OF RIGHT.... A. This Motion Is Timely.... B. CropLife s Members Have Legally Protectable Interests.... C. Those Significantly Protectable Interests May Be Impaired By The Disposition Of This Case.... D. CropLife s Members Interests May Not Be Adequately Represented By Existing Parties.... II. IN THE ALTERNATIVE, CROPLIFE SHOULD BE GRANTED PERMISSIVE INTERVENTION.... CONCLUSION... -ii- MOTION TO INTERVENE, CASE NO. :-CV-00

4 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 Cases TABLE OF AUTHORITIES Page(s) Cal. Dump Truck Owners Ass n v. Nichols, F.R.D. 0 (E.D. Cal. 0)..., 0 Chinatown Neighborhood Ass n v. Brown, No. C--, 0 WL 0 (N.D. Cal. Sept., 0)... Citizens for Balanced Use v. Montana Wilderness Ass n, F.d (th Cir. 0)... passim Cnty. of Fresno v. Andrus, F.d (th Cir. 0)... Ctr. for Biological Diversity v. EPA, No. -cv-00-jcs (N.D. Cal. Apr., 0)... Ctr. for Biological Diversity v. EPA, No. :0-cv-0-JCS (N.D. Cal. Dec., 00)..., Ctr. for Biological Diversity v. U.S. Fish & Wildlife, No. C -00 JSW (N.D. Cal. Mar., 0)..., Ellis v. Bradbury, No. C-- MMC, 0 WL 0 (N.D. Cal. Sept., 0)...,, Forest Conservation Council v. U.S. Forest Serv., F.d (th Cir. )... 0 Freedom from Religion Found., Inc. v. Geithner, F.d (th Cir. 0)... Greene v. United States, F.d (th Cir. )... Idaho Farm Bureau Fed n v. Babbitt, F.d (th Cir. )... Kootenai Tribe of Idaho v. U.S. Forest Serv., F.d 0 (th Cir. 00)... League of United Latin Am. Citizens v. Wilson, F.d (th Cir. )...,, Merrell v. Thomas, 0 F.d (th Cir. )... -iii- MOTION TO INTERVENE, CASE NO. :-CV-00

5 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 Natural Res. Def. Council, Inc. v. United States, F.d (0th Cir. )... Nw. Coal. for Alternatives to Pesticides v. EPA, No. C0- (Feb., 0)... Nw. Forest Res. Council v. Glickman, F.d (th Cir. )... Pesticide Action Network N. Am. v. U.S. EPA, No. C 0-0 MHP (N.D. Cal. July, 00)...,, Reckitt Benckiser Inc. v. EPA, F.d (D.C. Cir. 00)... Sierra Club v. EPA, F.d (th Cir. )... Spangler v. Pasadena City Bd. of Educ., F.d (th Cir. )... Sw. Ctr. for Biological Diversity v. Berg, F.d 0 (th Cir. 00)... passim Trbovich v. United Mine Workers of Am., 0 U.S. ()... United Farm Workers v. U.S. EPA, No. C 0-0, 00 U.S. Dist. LEXIS (N.D. Cal. Aug., 00)... United States v. Alisal Water Corp., 0 F.d (th Cir. 00)... United States v. City of Los Angeles, F.d (th Cir. 00)..., United States v. Oregon, F.d (th Cir. )... Wilderness Soc y v. U.S. Forest Serv., 0 F.d (th Cir. 0) (en banc)...,, Federal Statutes U.S.C. ()... U.S.C. 0()... U.S.C., et seq.... -iv- MOTION TO INTERVENE, CASE NO. :-CV-00

6 Case:-cv-00-JCS Document Filed0/0/ Page of 0 U.S.C. (bb)... U.S.C. a..., U.S.C. a-... U.S.C. a(c)()..., U.S.C. a(g)... U.S.C. d(c)()... U.S.C. j(a)()(g)... U.S.C. k(a)... U.S.C., et seq.... U.S.C.... U.S.C. (a)()..., U.S.C.... Federal Regulations 0 C.F.R. Part... Federal Rules Federal Rule of Civil Procedure... i Federal Rule of Civil Procedure... passim 0 -v- MOTION TO INTERVENE, CASE NO. :-CV-00

7 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff Center for Biological Diversity ( Plaintiff ) brought this suit against the U.S. Department of the Interior, the U.S. Fish and Wildlife Service ( FWS ), and agency officials (collectively, Defendants ) alleging that Defendants have violated Section (a)() of the Endangered Species Act ( ESA ), U.S.C. (a)(), and Section 0() of the Administrative Procedure Act, U.S.C. 0(). This case is a companion to prior litigation brought by Plaintiff against the U.S. Environmental Protection Agency ( EPA ) alleging an absence of ESA consultation in deciding to register (i.e., approve for sale and use) numerous pesticide products under the Federal Insecticide, Fungicide, and Rodenticide Act ( FIFRA ), U.S.C. a(c)(). That prior case resulted in a settlement and interim conditions for the challenged products until the completion of ESA Section (a)() consultation. In this case, Plaintiff alleges that FWS has failed to timely complete ESA consultation on three of the pesticides that were named in the prior litigation: atrazine, alachlor, and,-d. See Compl. - [Dkt. ]. Plaintiff claims those pesticides may affect two listed species in the California Bay Delta. Id. Plaintiff seeks declaratory and injunctive relief, including an order directing FWS to complete ESA consultations with EPA regarding those products, and an order restricting, or prohibiting the use of, those pesticides until such consultation is complete. Id.; see also id., Prayer For Relief, -. Plaintiff s claims directly threaten the valuable property rights and economic interests of the members of Proposed Intervenor-Defendant CropLife America ( CropLife ). As explained further below, when EPA grants a FIFRA registration, it issues a valuable nationwide license. The challenged licenses are owned by CropLife s members and they are legally protectable See Second Amended Complaint, Ctr. for Biological Diversity v. EPA, No. :0-cv-0-JCS (N.D. Cal. Dec., 00) [Dkt. 0] (hereafter identified as the Goby litigation ). See Order Approving Stipulated Injunction and Order, No. :0-cv-0 (May, 00) [Dkt. ]; see also Joint Motion for Entry of Stipulated Injunction, Attachment, No. :0-cv-0 (Jan., 00) [Dkt. 0-]. -- MOTION TO INTERVENE, CASE NO. :-CV-00

8 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 property rights. Declaration of Rachel G. Lattimore -, attached as Exhibit A. As it did in the previous litigation, CropLife has moved to intervene because it has an interest in defending the validity and finality of its members registrations. Lattimore Decl. -. Granting CropLife s motion will ensure that the Court has the view of the regulated entities that hold the licenses for the challenged products before the Court rules on the matter. STATEMENT OF THE ISSUE TO BE DECIDED Whether CropLife America may intervene as a Defendant under Rule to protect its members property interests in the challenged pesticide products and other affected product registrations. BACKGROUND A. REGULATORY FRAMEWORK. The Federal Insecticide, Fungicide, and Rodenticide Act ( FIFRA ) FIFRA regulates the distribution, sale, and use of pesticides. U.S.C., et seq. Under FIFRA, pesticide products must be registered by EPA before they can be marketed, sold, or distributed in the United States. U.S.C. a. A registration operates as a product-specific license. To become registered, an applicant must submit extensive scientific data to demonstrate to EPA that use of the product will not pose unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the product. Id. (bb). EPA can only register a pesticide if it determines that the pesticide will perform its intended function without unreasonable adverse effects on the environment and that when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment. Id. a(c)()(c), (D); see also U.S.C. (bb) (defining unreasonable adverse effects ). The FIFRA standard distinctly balances the environmental harm of using a pesticide against its economic, social, and environmental benefits. Merrell v. Thomas, 0 F.d, 0 (th Cir. )). In evaluating whether registration is appropriate, EPA reviews extensive data pertaining to the pesticide s active ingredient as well as formulations and particular uses of the pesticide. -- MOTION TO INTERVENE, CASE NO. :-CV-00

9 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 U.S.C. a; 0 C.F.R. Part. Every registered product is required to display an EPAapproved label that enumerates approved uses and applications. Use of a pesticide in a manner inconsistent with that label is prohibited. U.S.C. j(a)()(g). After registration, EPA is required to conduct a regular Registration Review of every registered pesticide to confirm that it continues to meet statutory requirements. U.S.C. a(g), a-. EPA also may suspend a registration if necessary to prevent an imminent hazard during the time required for cancellation of a particular registration. Id. d(c)(); see also id. k(a) (giving EPA the authority to issue a stop sale, use or removal order).. The Endangered Species Act ( ESA ) The ESA, U.S.C., et seq. protects endangered species and threatened species (together, listed species ) that have been listed pursuant to the rulemaking process in ESA Section, U.S.C.. ESA Section (a)() provides, in relevant part, that: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency...is not likely to jeopardize the continued existence of any...[listed] species or result in the destruction or adverse modification of [designated critical] habitat of such species. U.S.C. (a)(). B. CROPLIFE AMERICA AND ITS INTEREST IN THIS LITIGATION CropLife America is a national, private, not-for-profit trade association, which represents companies that develop and sell crop protection products for agriculture and pest management in the United States. Lattimore Decl.. CropLife s registrant member companies produce most of the crop protection products registered under FIFRA for use in the United States. Id. Those registrations are valuable property rights. Id. -. Companies must invest substantial funds in product research, development, and testing before a new pesticide active ingredient is brought to market, with over 0 tests typically conducted. Id.. On average, companies spend $ million in bringing a product to market. Id. CropLife s members own all of the registrations for the challenged pesticide products atrazine, alachlor, and,-d, including the technical products (i.e., active ingredients) and the enduse products formulated with those pesticides. At least member companies hold registrations -- MOTION TO INTERVENE, CASE NO. :-CV-00

10 Case:-cv-00-JCS Document Filed0/0/ Page0 of 0 0 for atrazine and the end-use products formulated with that active ingredient. Id.. At least member company holds the registration for alachlor. Id. At least member companies own registrations for,-d and the end-use products formulated with that active ingredient. Id. CropLife s members also are the owners of thousands of other registrations issued by EPA that may be affected by the disposition of this case. Id. To protect its members plain and direct interests in this litigation, CropLife seeks to intervene. C. PROCEDURAL HISTORY This case follows from Plaintiff s prior litigation against EPA. In 00, Plaintiff challenged EPA s failure to consult with FWS under the ESA in registering over 0 pesticides, which Plaintiff alleged have adverse effects on listed species in the Bay Area, including the Goby salamander ( the Goby litigation ). See Complaint, Ctr. for Biological Diversity v. EPA, et al., No. :0-cv-0-JCS (N.D. Cal.) [Dkt. ]. The three pesticides at issue in this case were among the products Plaintiff challenged in the Goby litigation. See, e.g., id. -,. As in this case, Plaintiff sought declaratory and injunctive relief. See id., Prayer for Relief, -. CropLife was granted Intervenor-Defendant status in the remedy phase of that litigation. See Order, No. :0-cv-0 (Mar., 00) [Dkt. ]. In 00, EPA resolved the Goby litigation by entering into a settlement agreement with Plaintiff. See Order Approving Stipulated Injunction and Order, No. No. :0-cv-0 (May, 00) [Dkt. ]; see also Joint Motion for Entry of Stipulated Injunction, Attachment, No. :0-cv-0 (Jan., 00) [Dkt. 0-]. The stipulated injunction imposed interim conditions on the challenged products until ESA consultation was complete for each product, including for atrazine, alachlor, and,-d. See id. Plaintiff now has filed suit against FWS for allegedly failing to complete ESA consultation with EPA on atrazine, alachlor, and,-d and their purported effects on the Alameda whipsnake and the Delta smelt. As in the Goby litigation, CropLife seeks to intervene in this matter to continue to represent its members interests in their products. -- MOTION TO INTERVENE, CASE NO. :-CV-00

11 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 ARGUMENT For the reasons discussed below, CropLife is entitled to intervene in this case as a matter of right under Rule (a)(). In the alternative, CropLife should be granted permission to intervene under Rule (b)(). I. CROPLIFE IS ENTITLED TO INTERVENE AS OF RIGHT. An applicant for intervention is entitled to intervene as a matter of right under Rule (a)() if it satisfies four conditions: () the motion must be timely; () the applicant must claim a significantly protectable interest relating to the property or transaction which is the subject of the action; () the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and () the applicant s interest must be inadequately represented by the parties to the action. Wilderness Soc y v. U.S. Forest Serv., 0 F.d, (th Cir. 0) (en banc); accord Sw. Ctr. for Biological Diversity v. Berg, F.d 0, (th Cir. 00). The Ninth Circuit interprets Rule broadly in favor of proposed intervenors to allow parties with a practical interest in the outcome of a particular case to intervene. United States v. City of Los Angeles, F.d, - (th Cir. 00) (citation omitted) (internal quotation marks omitted); accord United States v. Oregon, F.d, (th Cir. ) ( We construe the rule broadly in favor of applicants for intervention ). The intervention inquiry is guided primarily by practical considerations, not technical distinctions. Berg, F.d at (citation omitted) (internal quotations omitted). In considering a motion to intervene, a district court [also] is required to accept as true the non-conclusory allegations made in support of an intervention motion. Id. at. below. CropLife satisfies all four requirements for intervention as of right, as demonstrated A. This Motion Is Timely. Timeliness is the threshold requirement for intervention as of right. League of United Latin Am. Citizens v. Wilson, F.d, 0 (th Cir. ) (internal quotation marks omitted). In determining whether a motion for intervention is timely, [a court] consider[s] three -- MOTION TO INTERVENE, CASE NO. :-CV-00

12 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 factors: () the stage of the proceeding at which an applicant seeks to intervene; () the prejudice to other parties; and () the reason for and length of delay. Id. at 0 (internal quotation marks omitted). Timeliness is a flexible concept; its determination is left to the district court s discretion. United States v. Alisal Water Corp., 0 F.d, (th Cir. 00). Because this case has just begun, CropLife easily clears this threshold. Plaintiff s Complaint was filed on February, 0. [Dkt. ]. Defendants have not filed a responsive pleading, and the Court has extended the deadline for doing so through May, 0. [Dkt. ]. No motions have been filed and no hearings have been held. As a result, this motion is timely. B. CropLife s Members Have Legally Protectable Interests. CropLife is a trade association whose members have sufficiently legally protectable interests sufficient for intervention under Rule (a)(). The interest test seeks to involve as many apparently concerned persons as is compatible with efficiency and due process. Cnty. of Fresno v. Andrus, F.d, (th Cir. 0). The inquiry focuses on whether an applicant for intervention has a significantly protectable interest in the proceeding to warrant intervention as of right. Greene v. United States, F.d, (th Cir. ). An interest is significantly protectable if it is protectable under some law and there is a relationship between the legally protected interest and the [plaintiff s] claims. Berg, F.d at (citation omitted); accord Nw. Forest Res. Council v. Glickman, F.d, (th Cir. ). CropLife s members have significantly protectable property interests under Rule (a)() because they hold the EPA registrations (licenses) for challenged pesticide products containing See, e.g., Citizens for Balanced Use v. Montana Wilderness Ass n, F.d, (th Cir. 0) (holding that a motion to intervene was timely because it was filed less than three months after the complaint was filed and within two weeks after the defendant had filed its answer); Idaho Farm Bureau Fed n v. Babbitt, F.d, (th Cir. ) (motion was timely when motion filed four months after [plaintiff] filed the action and before any hearings or rulings on substantive matters ); Sierra Club v. EPA, F.d, (th Cir. ) (holding intervention was clearly timely where it was filed before the EPA had even filed its answer ), overruled in part on other grounds, Wilderness Soc y v. U.S. Forest Serv., 0 F.d (th Cir. 0). -- MOTION TO INTERVENE, CASE NO. :-CV-00

13 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 atrazine, alachlor, and,-d that are protected by law. See Reckitt Benckiser Inc. v. EPA, F.d, (D.C. Cir. 00); see also U.S.C. () (under the Administrative Procedure Act ( APA ), a license includes the whole or part of an agency permit, certificate, approval, registration... or other form of permission ); Ellis v. Bradbury, No. C-- MMC, 0 WL 0, * (N.D. Cal. Sept., 0); Lattimore Decl. -. CropLife s members also hold other FIFRA registrations that may be impacted by the outcome of this case. Lattimore Decl.. Those registrations also are a valuable property right because CropLife s members invest enormous financial resources in obtaining them. Lattimore Decl.. On average, a company spends $ million in product research, development, and testing before a new pesticide active ingredient is brought to market, with over 0 tests typically conducted. Id. Accordingly, FIFRA registrations have been widely deemed to be significantly protectable interests in determining a third party s right to intervene in an action. See, e.g., Ellis, 0 WL 0, at * (ruling that CropLife had demonstrated an interest sufficient for intervention because at least four of CropLife s members... hold registrations that plaintiffs, by the instant action, are challenging... and, consequently, each of those members has a significantly protectable interest (citations omitted)); Order Granting CropLife s Motion to Intervene at -, Ctr. for Biological Diversity v. U.S. Fish & Wildlife, No. C -00 JSW (N.D. Cal. Mar., 0) [Dkt. ] (finding that CropLife has made a sufficient showing that it has a significant protectable interest ). As a trade association, CropLife shares its members legally protectable interests for purposes of intervention. See, e.g., Berg, F.d at - (holding that a trade association had a sufficiently protectable interest when several of its members had protectable interests in the challenged action); Ellis, 0 WL 0, at * ( Where, as here, at least some of the members of [the] applicant trade association [CropLife] have a significantly protectable interest, the association likewise has such interest. ). C. Those Significantly Protectable Interests May Be Impaired By The Disposition Of This Case. CropLife s members significantly protectable interests and by extension, CropLife s -- MOTION TO INTERVENE, CASE NO. :-CV-00

14 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 interests may be impaired by the disposition of this case. As the Ninth Circuit has explained, [i]f an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene. Citizens for Balanced Use, F.d at (internal quotation marks omitted) (quoting advisory committee notes to Rule ); see also Berg, F.d at (relying on the advisory committee notes and granting intervention where a trade association s members legally protectable interests may be affected by the litigation). This case plainly could legally and practically impair the interests of at least eight of CropLife s members because Plaintiff seeks an order restricting, or prohibiting the use of, the three challenged pesticides. Berg, F.d at ; see Compl., Prayer For Relief, ; Lattimore Decl.. That alone is sufficient to satisfy the third prong of the intervention test. See Ellis, 0 WL 0, at * (granting intervention as of right and holding that because plaintiffs seek, inter alia, an order... to vacate the challenged registrations... disposition of the... action may impair the protectable interests of certain members of CropLife America, and, by extension, CropLife America ). In addition, other registrations held by CropLife s members that are not directly challenged here also may be affected by this case if Plaintiff succeeds in altering the FIFRA administrative registration process, such as by conditioning or suspending other registrations until the FWS completes ESA consultation with EPA. See, e.g., Memorandum and Order at, Pesticide Action Network N. Am. v. U.S. EPA, No. C 0-0 MHP (N.D. Cal. July, 00), [Dkt. ] ( PANNA Order ) (ruling, where both CropLife and a registrant sought intervention, that it is clear that the disposition of this action may impair or impede the applicants ability to protect their interest in the existing registrations and the registration process ); see also Natural Res. Def. Council, Inc. v. United States, F.d (0th Cir. ) (reversing the district court s denial of intervention for future applicants for licenses and recognizing that their interests in future licenses would be directly and adversely affected if the plaintiff prevailed). This Court has recognized in other cases that CropLife has a vested interest in maintaining the current -- MOTION TO INTERVENE, CASE NO. :-CV-00

15 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 regulatory scheme for the benefit of its members. PANNA Order at. This Court has also recognized that any change in the regulatory scheme will likely lead to large financial consequences for [CropLife] members. Id. A finding in Plaintiff s favor thus could directly impair CropLife s members interests in their registrations for products containing atrazine, alachlor, and,-d, as well as members interests in other FIFRA registrations, satisfying the third prong of the test for intervention as of right. D. CropLife s Members Interests May Not Be Adequately Represented By Existing Parties. CropLife also meets the final requirement for intervention as of right: that the existing parties may not adequately represent its members interests. The burden of showing inadequacy of representation is minimal and satisfied if the applicant can demonstrate that representation of its interests may be inadequate. Citizens for Balanced Use, F.d at ; id. at 00 ( We stress that intervention of right does not require an absolute certainty that a party s interests will be impaired or that existing parties will not adequately represent its interests. ); see also Trbovich v. United Mine Workers of Am., 0 U.S., n.0 () ( The requirement... is satisfied if the applicant shows that representation of his interest may be inadequate.... ). To determine whether the existing parties adequately represent a putative intervenor s interests, courts will consider: () whether the interest of a present party is such that it will undoubtedly make all the intervenor s arguments; () whether the present party is capable and willing to make such arguments; and () whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. United States v. City of Los Angeles, Cal., F.d (th Cir. 00) (internal quotation marks omitted). The most important factor in assessing the adequacy of representation is how the interest compares with the interests of existing parties. Citizens for Balanced Use, F.d at (citation omitted). In conducting this analysis, [a]ny doubt as to whether the existing parties will adequately represent the intervenor should be resolved in favor of intervention. Cal. Dump Truck Owners Ass n v. Nichols, F.R.D. 0, 0 (E.D. Cal. 0) (citing Fed. Sav. & Loan -- MOTION TO INTERVENE, CASE NO. :-CV-00

16 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 Ins. Corp. v. Falls Chase Special Taxing Dist., F.d, (th Cir. )). FWS and the other federal Defendants cannot adequately represent CropLife and its members in this litigation because FWS and CropLife do not have sufficiently congruent interests. Berg, F.d at. FWS is a public agency that must balance relevant environmental... interests with competing resource constraints and the interests of various constituencies. Cal. Dump Truck Owners Ass n, F.R.D. at 0. By contrast, CropLife is a private trade association whose members have interests in protecting their valuable property rights. Lattimore Decl. -,. FWS has no interest in defending the commercial value of those registrations. And although FWS may have an interest in defending against any increased burdens imposed on FWS, it would not share CropLife s and its members concerns about how those increased burdens could translate to economic uncertainty and delay for FIFRA registrants and their customers. Moreover, the government simply cannot be expected under the circumstances presented to protect these private interests. Berg, F.d at ; see also Citizens for Balanced Use, F.d at (holding that the government s representation of the broader public interest may not be identical to the individual parochial interest of a particular group just because both entities occupy the same posture in the litigation. (quoting WildEarth Guardians v. U.S. Forest Serv., F.d, (0th Cir. 00)). CropLife represents the economic interests of the regulated industry, including the eight member companies whose products have been challenged as well as the majority of the holders of other FIFRA registrations. FWS stands in the position of a regulator with much broader concerns. Because [t]he interests of government and private sector may diverge, CropLife would likely offer important elements to the proceedings that the existing parties would likely neglect and can offer [its] own unique private perspective[] in this matter. Berg, F.d at ; accord Forest Conservation Council v. U.S. Forest Serv., F.d, (th Cir. ). That divergent perspective demonstrates that FWS s It is self-evident from the Complaint in this case that the interests of CropLife and Plaintiff are not aligned, and that Plaintiff would not adequately represent CropLife s interests. -0- MOTION TO INTERVENE, CASE NO. :-CV-00

17 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 representation of CropLife and its members interests may be inadequate such that intervention as of right is warranted. See Ellis, 0 WL 0 WL 0, at * (concluding that CropLife had demonstrated that EPA may not adequately represent its interests); Order Granting CropLife s Motion to Intervene at, Ctr. for Biological Diversity v. U.S. Fish & Wildlife, No. C -00 JSW ( The Court is persuaded that... Federal defendants stand in the place of the regulators and the proposed intervenor stands in the place of the regulated. ); PANNA Order at (ruling that EPA may be an inadequate representative of the interests of CropLife and its members); United Farm Workers v. U.S. EPA, No. C 0-0, 00 U.S. Dist. LEXIS, at * (N.D. Cal. Aug., 00) (holding that pesticide registrants have a more parochial and financial interest not shared by the EPA ). For these reasons, CropLife satisfies the requirements for intervention as of right, and its motion to intervene should be granted. See, e.g., Ellis, 0 WL 0, at *-; Order Granting CropLife s Motion to Intervene, Ctr. for Biological Diversity, No. C -00 JSW; Minute Order, Nw. Coal. for Alternatives to Pesticides v. EPA, No. C0- (Feb., 0) [Dkt. ] (granting CropLife s motion to intervene, among others, in a FIFRA/ESA case). II. IN THE ALTERNATIVE, CROPLIFE SHOULD BE GRANTED PERMISSIVE INTERVENTION. In the alternative, and at a minimum, CropLife should be granted permission to intervene under Rule (b). Rule (b) provides in relevant part: Upon timely motion, the court may permit anyone to intervene who:... has a claim or defense that shares with the main action a common question of law or fact.... In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. (b)(), (). In the Ninth Circuit, a court may grant permissive intervention where the applicant for jurisdiction shows () independent grounds for jurisdiction; () the motion is timely; and () the applicant s claim or defense, and the main action, have a question of law or If the Court concludes that CropLife is entitled to intervene as of right, it need not reach the question of permissive intervention. See, e.g., Citizens for Balanced Use, F.d at. -- MOTION TO INTERVENE, CASE NO. :-CV-00

18 Case:-cv-00-JCS Document Filed0/0/ Page of 0 0 a question of fact in common. League of United Latin Am. Citizens, F.d at 0 (internal quotation marks omitted). The language of the rule makes clear that... if there is a common question of law or fact, the requirement of the rule has been satisfied and it is then discretionary with the court whether to allow intervention. Kootenai Tribe of Idaho v. U.S. Forest Serv., F.d 0, (th Cir. 00), overruled in part on other grounds, Wilderness Soc y v. U.S. Forest Serv., 0 F.d at (th Cir. 0). No showing of direct personal interest is required. In addition the court may consider other relevant factors in making its discretionary decision. Chinatown Neighborhood Ass n v. Brown, No. C--, 0 WL 0, at * (N.D. Cal. Sept., 0) (citing Kootenai Tribe of Idaho v. Veneman, F.d 0, 0 (th Cir. 00); accord Spangler v. Pasadena City Bd. of Educ., F.d, (th Cir. )). CropLife meets the standard for permissive intervention under Rule (b). First, because this is a federal question case, this Court has an independent ground for jurisdiction under U.S.C.. See Freedom from Religion Found., Inc. v. Geithner, F.d, (th Cir. 0) (explaining that the jurisdictional requirement for permissive intervention ensures that permissive intervention is not used to destroy complete diversity [b]ut in federal-question cases, the identity of the parties is irrelevant and the district court s jurisdiction is grounded in the federal question(s) raised by the plaintiff ). Second, as discussed above, this motion is timely and does not prejudice Plaintiff s interests in the case. Finally, it is plain that there are common issues of law and fact between CropLife s defense and this case. Plaintiff has challenged, and seeks to condition or enjoin, registrations for three pesticides whose registrations are owned by CropLife member companies. Lattimore Decl.. Disposition of this case in Plaintiff s favor also could delay and impose significant cost burdens on other FIFRA registrations. Id.,,. As a result, CropLife s members, and by extension CropLife itself, have a significant interest in the certainty and finality of their product registrations under FIFRA, warranting permission to intervene in this case. See Order Granting Motion to Intervene; Granting Motions to Dismiss and Dismissing Complaint with Leave to Amend at 0, Ctr. for Biological Diversity v. EPA, No. -cv-00-jcs (N.D. Cal. Apr., 0) [Dkt. ] -- MOTION TO INTERVENE, CASE NO. :-CV-00

19 Case:-cv-00-JCS Document Filed0/0/ Page of (granting permissive intervention to CropLife); PANNA Order at (granting permissive intervention in addition to intervention as of right in pesticide registration case where [p]laintiffs challenges to the re-registration process raise questions that are important not only to [the intervenor], but also to the regulated industry and it is important that the industry s voice be heard ). CONCLUSION For the foregoing reasons, this Court should grant CropLife s motion to intervene and under Rule and permit CropLife to file its proposed answer under Rule (c). 0 0 Dated: May, 0 Respectfully submitted, /s/ Kirsten L. Nathanson Kirsten L. Nathanson (DC Bar #)* Thomas Lundquist (DC Bar # )* Sherrie A. Armstrong (DC Bar #00)* 00 Pennsylvania Avenue, N.W. Washington, D.C Janine L. Scancarelli (SBN 0) Battery Street, rd Floor San Francisco, CA Attorneys for Proposed Intervenor-Defendant CropLife America *Application for admission pro hac vice to be submitted -- MOTION TO INTERVENE, CASE NO. :-CV-00