UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
RANDY HARDIN AND )
VERNON BLASINGAME )
)
Plaintiffs, )
v. )
)
)Civ. Action No. 04-1299 (EGS)
)
LISA JACKSON, ADMINISTRATOR, )
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY,1 )
)
Defendant, )
)
and )
)
BASF CORPORATION, )
)
Defendant-Intervenor)
___________________________________)
MEMORANDUM OPINION
Before the Court is a Motion for Leave to Intervene in the
above-captioned case by BASF Corporation (“BASF”). This case
involves the challenge to the registration of products regulated
by the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”), 7 U.S.C. §§ 136-136y. Plaintiffs ask the Court to
invalidate these registrations. BASF is the principal
registrant, data submitter, owner, and manufacturer of the
products which plaintiffs seek to invalidate. BASF argues that
1
By operation of Federal Rule of Civil Procedure 25(d)(1),
EPA Administrator Lisa Jackson is automatically substituted as
the proper party in place of former EPA Administrator Michael
Leavitt.
they will suffer immediate and severe economic loss from the
invalidation of these registrations. Plaintiffs oppose BASF’s
motion; defendant does not oppose the motion. After careful
consideration of BASF’s motion, plaintiff’s opposition, BASF’s
reply, and applicable case law, this Court GRANTS BASF’s Motion
to Intervene and the Motion to Supplement the Administrative
Record.
I. BACKGROUND
On August 3, 2004, plaintiffs, produce farmers who live in
Arkansas, filed a Complaint with this Court alleging that BASF’s
registrations for Facet® 50 WP, Facet® 75 DF, and Facet® GR
(collectively, “Facet”) are not in compliance with FIFRA.
Seeking declaratory and other relief, plaintiffs asked the Court
to invalidate these registrations. BASF applied for these
registrations, submitted the data in support of them, and worked
with the United States Environmental Protection Agency (“EPA”) to
secure and maintain the registrations.
On July 27, 2005, this Court stayed the action to permit the
EPA to conduct administrative proceedings on plaintiffs’ Petition
to Revoke, which had been filed shortly before the Complaint in
this case was filed. The Court returned the matter to its
calendar on January 15, 2008, and ordered the EPA to prepare to
file its Answer and the Administrative Record. The parties were
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also ordered to negotiate and submit fact stipulations and a
proposed briefing schedule for dispositive motions.
On March 16, 2008, this Court approved the parties’ proposed
joint briefing schedule; the briefing schedule was amended on May
8, 2008. Stipulations of facts and exhibits by the parties were
submitted to the Court on July 10, 2008, and the plaintiffs
submitted a Motion for Partial Summary Judgment on August 1,
2008. On September 5, 2008, defendant filed its opposition to
plaintiffs’ Motion for Partial Summary Judgment and a Cross-
Motion for Summary Judgment. On September 5, 2008, BASF filed
its Motion to Intervene. Plaintiffs timely filed an objection to
BASF’s motion; defendant does not oppose intervention. BASF also
filed an Answer, a Motion to Supplement the Administrative
Record, a Motion to Strike Stipulations 6 and 8, and a Motion to
Dismiss, or in the Alternative for Summary Judgement. BASF asks
the Court to consider the Answer and the other motions filed as
of date of this Order.
II. DISCUSSION
Plaintiffs argue that BASF’s motion is untimely and that
BASF’s interests are adequately represented by the EPA. BASF
contends that until the parties filed their fact stipulations and
dispositive motion, BASF had every reason to believe that EPA
would represent their interests. After reviewing the
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stipulations and pleadings, only then did BASF conclude that they
were adverse to BASF's interests. Up until then, they argue,
they believed that their interests were being adequately
represented by EPA.
As a threshold matter, BASF must show that it has Article
III standing to participate in this litigation. See Military
Toxics Project v. EPA, 146 F.3d 948, 953 (D.C. Cir. 1998) (citing
City of Cleveland v. Nuclear Regulatory Comm’n, 17 F.3d 1515,
1516-18 (D.C. Cir. 1994)). This is not a high hurdle for BASF to
clear. “In many if not most cases the petitioner's standing to
seek review of administrative action is self-evident.” Sierra
Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002). “In
particular, if the complainant is ‘an object of the action (or
forgone action) at issue’ . . . there should be ‘little question
that the action or inaction has caused him injury, and that a
judgment preventing or requiring the action will redress it.’”
Id. at 900 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
561-62 (1992)). BASF’s registrations for its pesticides are the
subject of this suit, and if plaintiffs are granted the relief
they seek, BASF will be injured.
A Motion to Intervene is governed by Federal Rule of Civil
Procedure 24. BASF’s motion relies on both permissive
intervention and intervention as of right. See Fed. R. Civ. P.
24(a) & (b). This Court finds that BASF is entitled to intervene
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as of right; permissive intervention, therefore, need not be
addressed by this Court. See Fund for Animals v. Norton, 322
F.3d 728, 731 (D.C. Cir. 2003) (citing Foster v. Gueory, 655 F.2d
1319, 1323-24 (D.C. Cir. 1981)). Rule 24(a)(2) states in
relevant part:
On timely motion, the court must permit
anyone to intervene who . . . claims an
interest relating to the property or
transaction that is the subject of the
action, and is so situated that disposing of
the action may as a practical matter impair
or impede the movant's ability to protect its
interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a).
The party seeking intervention as of right must meet four
conditions: (1) the motion must be timely; (2) the party must
claim “‘an interest relating to the property or transaction which
is the subject of the action’”; (3) the party must be “‘so
situated that the disposition of the action may as a practical
matter impair or impede the applicant's ability to protect that
interest’”; and (4) the party must show that their interest may
not be “adequately represented by existing parties.’” Fund for
Animals, 322 F.3d at 731 (quoting Mova Pharm Corp. v. Shalala,
140 F.3d 1060, 1074 (D.C. Cir. 1998)).
Plaintiffs only challenge the timeliness of the motion and
whether BASF’s interests are adequately represented by EPA. This
Court, therefore, need not consider the second and third
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conditions under Rule 24(a)(2).
A. Timeliness
Plaintiffs argue that BASF’s motion is not timely because
BASF knew as far back as 2004 that its interests would be
affected if plaintiffs were successful in this litigation.
Timeliness is to be determined by looking at all of the
circumstances relevant to the case and the motion. See NAACP v.
New York, 413 U.S. 345, 366 (1973). A review of the procedural
posture of this case demonstrates that BASF’s motion is timely.
This case was filed in 2004, and after initial filings and
discussions by the parties, the case was stayed for two years.
This Court lifted the stay on January 15, 2008. The parties then
entered the Stipulation of Facts and Exhibits on July 10, 2008.
Plaintiffs’ filed their Motion for Partial Summary Judgment on
August 1, 2008. The Court has not issued any decisions or the
merits of the claim, and no discovery has or will occur in this
case, as it is based on the administrative record. BASF filed
its Motion to Intervene after discovering that three of the
stipulations that the parties entered were adverse to its
interests. In viewing all of the relevant circumstances of this
case, this Court finds that BASF’s motion is timely.
B. Adequate Representation of Interests
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Even if a motion is timely, the Court may deny a motion to
intervene if the moving party’s interests are adequately
represented by an existing party. BASF specifically claims that
the reason it moved to intervene is that it felt that the EPA was
not adequately representing its interests. A showing that
existing representation is inadequate “is not onerous.” Dimond
v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986).
“The applicant need only show that representation of his interest
‘may be’ inadequate, not that representation will in fact be
inadequate.” Id. (citations omitted). “[P]etitioner[s]
ordinarily should be allowed to intervene unless it is clear that
the [existing] party will provide adequate representation for the
absentee.” United States v. Amer. Tel. & Tel. Co., 642 F.2d
1285, 1293 (D.C. Cir. 1980) (internal quotation marks and
citation omitted). The EPA does not oppose intervention, and the
D.C. Circuit has repeatedly held that private companies can
intervene on the side the government, even if some of their
interests converge. See Fund for Animals, 322 F.3d at 736; NRDC
v. Costle, 561 F.2d 904, 912-13 (D.C. Cir. 1977). BASF seeks to
intervene to protect its economic and propriety interests as the
owner of Facet registrations. The D.C. Circuit has frequently
found “inadequacy of governmental representation” when the
government has no financial stake in the outcome of the suit.
Dimond, 792 F.2d at 192; see also Fund for Animals, 322 F.3d at
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736; NRDC, 561 F.2d at 912, n.41; Nuesse v. Camp, 385 F.2d 694,
702-04 (D.C. Cir. 1967). Furthermore, BASF specifically
challenges three of the stipulations entered by plaintiffs and
EPA. As a result, BASF has offered additional pieces from the
administrative record that it believes support its Facet
registrations. BASF’s has also submitted as motion for summary
judgment – which will now be accepted by this Court as a result
of the disposition of this motion – which takes a different and
much broader approach to the defense of the Facet registration
process.
III. CONCLUSION
BASF’s Motion for Leave to Intervene is GRANTED; BASF is
hereby added as Defendant-Intervenor to the above-caption case.
BASF’s Motion to Supplement the Administrative Record is also
GRANTED. BASF’s Answer, its Motions to Supplement the
Administrative Record, to Strike Stipulations 6 and 7, and to
Dismiss, or in the Alternative, for Summary Judgment, are deemed
filed as of the date of this Order. An appropriate Order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Court Judge
March 3, 2009
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