dissenting:
The district court’s failure to conduct the requisite evidentiary hearing prevents me from joining the majority’s opinion. The majority correctly recognizes that the district court was required to conduct an evidentiary hearing before issuing a permanent injunction under Federal Rule of Civil Procedure 65 unless (1) the facts were undisputed; or (2) the adverse party expressly waived its right to an evidentiary hearing. Charlton v. Estate of Charlton, 841 F.2d 988, 989(9th Cir.1988). Despite recognizing this clear precedent, the majority affirms the district court’s decision to proceed without the requisite evidentiary hearing, and, in so doing, creates an altogether new exception to the evidentiary hearing requirement we recognized in Charlton.
The majority acknowledges that the facts were sharply disputed by the parties. To be sure, the parties disputed almost every element of the facts underlying the proposed injunction. Specifically, the parties disputed the risk of genetic contamination that could occur if the district court did not enjoin the further planting of Roundup Ready alfalfa while APHIS prepared the EIS. Given that the parties disputed the facts underlying the need for, and scope of, any injunctive relief, the first recognized exception to the evidentiary hearing requirement was unavailable. See Charlton, 841 F.2d at 989.
The second recognized exception was unavailable too. As the district court noted, Monsanto and Forage Genetics requested an evidentiary hearing “apparently so the Court can assess the viability of its witnesses’ opinions regarding the risk of contamination if APHIS’s proposed conditions are imposed, as well as to resolve disputes with plaintiffs’ witnesses.” In discussing Monsanto’s and Forage Genetics’ request for an evidentiary hearing, the majority notes APHIS’s failure to request an evidentiary hearing. This failure, however, is insignificant given that Monsanto and Forage Genetics already had made their request. Because the parties did not consent to proceed without an evidentiary hearing, the other recognized exception to the evidentiary hearing requirement was unavailable. See id. Given those facts, we should reverse to allow the district court to conduct an evidentiary hearing. But that is not what the majority does here.
The majority instead relies on Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir.2002), to create an altogether new exception to the evidentiary hearing requirement. The majority reasons that, because the injunction will only last as long as it takes APHIS to conduct an EIS, this is not a typical permanent injunction requiring typical procedural safeguards. The majority next assumes that an evidentiary hearing would result in waste of agency resources, because the hearing would require consideration of the same *1142issues that APHIS must resolve in conjunction with the EIS.
As the majority correctly recognizes, we affirmed the district court’s refusal to conduct an evidentiary hearing in Idaho Watersheds in light of the temporary nature of the injunction. But this .case isn’t Idaho Watersheds. There, the district court deferred to the agency’s recommendations and expertise in granting a temporary injunction—thereby resulting in an efficient resolution pending completion of the agency determinations. Conversely, in' this case, the district court expressly rejected APHIS’s proposed injunction and independently fashioned a permanent injunction without the benefit of live testimony subject to the adversarial process. In its revised opinion, the majority notes that the court “deferred to the agency and adopted ‘the relevant conditions proposed by the APHIS.’ ” What the district court did was defer to APHIS only with regard to its recommendations concerning the already planted, RRA. No deference, however, was given to. APHIS’s proposal that “prior to APHIS’[s] completion of the EIS ... RRA can be grown, harvested and used, provided it is in accordance with six stringent, science-based requirements designed to mitigate the potential environmental harms specified by this Court.” By picking and choosing when to afford deference, the court’s deference is tantamount to no deference at all. These shortcomings resulted in a critical failure by the district court and deprived the parties of important procedural rights when it came to shaping the scope of any potential injunction.
In its amended opinion, the majority states that the district court “held one hearing on the nature of the NEPA violation [and] two hearings on the scope of injunctive relief....” While the majority would like to describe the hearings in that manner, the record does not confirm such a description. The record instead indicates that the district court held' six hearings on motions by the parties. In five of these hearings, only argument by lawyers was heard. In one hearing Forage Genetics president Mark McCaslin was allowed to speak without notice to the parties or opportunity for cross-examination.
The majority argues that the district court didn’t need to conduct an evidentiary hearing, because it held the aforementioned hearings, had documentary submissions, and had the benefit of this testimony from Mr. McCaslin. With due respect to both counsel and Mr. McCaslin, this falls far short of the standards we have articulated for a hearing prior to issuing an injunction. The hearings cited by the majority were simply arguments by counsel construing the written submissions and documentary evidence. Although helpful, argument by counsel and documentary submissions are no substitute for live testimony when it comes to determining the nature and extent of the alleged injury, where the balance of hardship lies, and the scope of the injunction. Based on this record, Mr. McCaslin’s statement was little better than no testimony.
The district court could have used the evidentiary hearing to better ascertain the, nature of the alleged injury and to further understand the balance of the hardships associated with the parties’ varying proposals for injunctive relief. It didn’t. The district court also could have used the hearing to test the merits of the parties’ positions. An evidentiary hearing would have allowed for cross examination of the witnesses on their written testimony and submissions. Instead the district court rejected the agency’s proposal and fashioned its own permanent injunction based on argument of counsel, the written record, and ad hoc testimony from Mr. McCaslin. These shortcomings are significant, be*1143cause the district court might have reached a different result had it held an evidentiary hearing before reaching a decision.
In such a hearing, the district court did not need to resolve the very disputes over the risk of environmental harm that APHIS might resolve differently in an EIS—as the majority contends in its amended opinion. It only needed to decide, listening and observing the witnesses, what it would do in the mean time. The district court failed to do so.
The evidentiary hearing requirement is essential because it allows the district court an opportunity to consider the witnesses’ credibility in the face of cross examination. That step is what justifies the abuse of discretion standard of review under which we consider a district court’s decision to grant or deny injunctive relief. If a district court skips the requisite evidentiary hearing, we have exactly the same record on appeal as the district court did below. In that circumstance, I see no reason to afford the district court any discretion when reviewing its decision to grant or deny an injunction. For that reason, I consider it to be an abuse of discretion for a district court not to hold an evidentiary hearing unless the case fits in either of the recognized Charlton exceptions or the district court accepts the agency’s proposal for temporary injunctive relief, as occurred in Idaho Watersheds.
Based on this record, I have serious concerns about the scope of the injunction entered by the district court. At best, the record reflects sparse evidence of hay-to-hay gene transmission of RRA alfalfa in some areas of the country under certain planting conditions. Further, I see no good evidence of hay-to-seed or seed-to-seed gene transmission. Yet the district court entered a nationwide injunction on the planting of Roundup Ready alfalfa while APHIS completes an EIS. This nationwide injunction has severe economic consequences for Monsanto, Forage Genetics, and for the farmers and distributors who planned on RRA alfalfa being available. I would be more comfortable with a nationwide injunction had the district court held an evidentiary hearing to consider live testimony, listened to cross examination, and resolved any credibility issues between the witnesses. But no such hearing occurred, and I therefore have no confidence in the need for a nationwide injunction pending completion of the EIS.
By affirming the district court’s refusal to conduct an evidentiary hearing, the majority has created a third exception to the evidentiary hearing requirement. Under this decision, a district court now can fore-go conducting an evidentiary hearing simply because (1) the injunction may dissolve at some point and (2) the issues, to be raised at the hearing, overlap with the issues the agency must consider in making a final decision regarding the controversy. Instead of giving deference to the agency’s expertise, see The Lands Council v. McNair, 537 F.3d 981, 987-88, 991-93 (9th Cir.2008) (en banc), the majority gives deference to ■ the district court, despite its wholesale rejection of the agency’s proposal for an injunction and its failure to hold an evidentiary hearing. There aren’t many environmental cases that don’t fit into the majority’s newly-created exception. This is a mistake, as it would eliminate a “significant procedural step[,]” Charlton, 841 F.2d at 989, without any real justification. I would instead remand so that .the district court could conduct an evidentiary hearing on the merits and scope of the permanent injunction.