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Makhteshim Agan of North America, Inc. v. National Marine Fisheries Service

United States District Court, D. Maryland, Southern Division

November 8, 2018

MAKHTESHIM AGAN OF NORTH AMERICA, INC. et al., Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE et al. Defendants.

          MEMORANDUM OPINION

          PAUL W. GRIMM, UNITED STATES DISTRICT JUDGE

         This case arises out of a dispute between a group of pesticide manufacturers and the U.S. government. The plaintiff-manufacturers are challenging the latest developments in a long-running administrative process that has continued to frustrate their hopes of having the U.S. Environmental Protection Agency ("EPA") reregister the active ingredients in their products. While the litigation continues to run its course, a number of conservation and fishing organizations have come forward seeking to join the suit as intervenor-defendants. Mot. to Intervene, ECF No. 24. The issue now before the Court is whether to permit the intervention.

         Where, as here, a would-be intervenor seeks to join a suit on the same side as the government, it "must mount a strong showing" that the government cannot adequately represent its interest. Stuart v. Huff, 706 F.3d 345, 352 (4th Cir. 2013). The conservation and fishing organizations seeking to intervene in this case have not met their burden. I conclude, accordingly, they are not entitled to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. I also decline to exercise my discretion to permit their intervention under Rule 24(b). I will, however, authorize the groups to submit amici curiae briefs in accordance with the accompanying Standing Order.

         FACTUAL BACKGROUND

         This suit has a long and tortuous history, which the Court of Appeals for the Fourth Circuit chronicled at some length in Dow Agrosiences LLC v. National Marine Fisheries Service, 707 F.3d 462 (4th Cir. 2013). A tighter synopsis will suffice here.

         In brief, the manufacturers that brought this suit (collectively, the "Pesticide Manufacturers" or "Manufacturers")[1] are suppliers of agricultural pesticides containing chlorpyrifos, diazinon, or malathion - chemicals that, by law, cannot be distributed or sold unless the EPA has registered them. See 7 U.S.C. § 136a. All three chemicals were registered decades ago, Compl. ¶ 26, ECF No. 1, but a 1988 amendment to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") required the EPA to reregister them, see 7 U.S.C. § l36a-l(a). As this case amply demonstrates, the reregistration process can take years to complete, Compl. ¶ 14, and because the outcome may have significant implications for business interests as well as for the environment, it can be contentious. That certainly has been the case here, where, for the past 18 years, environmental groups and pesticide makers have taken turns challenging the reregistration process in court. See generally Dow Agrosciences, 707 F.3d at 465-66.

         At the center of all this litigation is Section 7 of the Endangered Species Act, which obligates the EPA to consult other federal agencies to insure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [such species'] habitat." 35 U.S.C. § 1536(a)(2). To that end, a 2001 lawsuit in the Western District of Washington spurred the EPA to initiate consultations with the National Marine Fisheries Service (the "Fisheries Service") to gauge the threat chlorpyrifos, diazinon, and malathion, among other pesticide ingredients, might pose to salmonid species and their habitats. See Dow Agrosciences, 707 F.3d at 465. In 2008, after yet another round of litigation, the Fisheries Service detailed its findings in a report known as a "biological opinion," or "BiOp." See 50 C.F.R. § 402.14(g)(4). A final draft (the "2008 BiOp") concluded the three pesticide ingredients at issue here "would jeopardize numerous salmonid species and adversely affect critical habitat for them." Dow Agrosciences, 707 F.3d at 466. Pesticide manufacturers sued the Fisheries Service under the Administrative Procedures Act ("APA"), 5 U.S.C. § 704, alleging the scientific processes the agency employed in developing the BiOp were not sufficiently rigorous, see Dow Agrosciences, 707 F.3d at 466. Ultimately, the Fourth Circuit agreed, ordering the district court to remand the case to the Fisheries Service for further proceedings. See Id. at 475.

         The process that followed yielded a new BiOp (the "2017 BiOp"), which is the subject of the dispute now before the Court. Here, the Manufacturers allege the 2017 BiOp "repeats all of the errors" the Fourth Circuit identified as flaws in the 2008 version. Compl. ¶ 50. The Manufacturers seek a judgment declaring the Fisheries Service violated the APA, the Endangered Species Act, and the Fourth Circuit's order in Dow Agrosciences and vacating the 2017 BiOp.

         Those claims continue to await resolution. For now, the Court need only concern itself with the motion to intervene, ECF No. 24, brought by four conservation or commercial fishing organizations: the Northwest Center for Alternatives to Pesticides, the Pacific Coast Federation of Fishermen's Associations, the Institute for Fisheries Resources, and Defenders of Wildlife (collectively, the "Applicants"). These organizations, which have the stated goal of protecting salmon and steelhead from the harmful effects of pesticides, see Mot. to Intervene 6, ECF No. 24, have been contesting the reregistration of chlorpyrifos, diazinon, and malathion for nearly two decades. Three of them were plaintiffs in the 2001 lawsuit in the Western District of Washington that impelled the EPA to begin consultations with the Fisheries Service, see Wash. Toxics Coal. v. EPA, No. C01-0132C, 2002 WL 34213031 (W.D. Wash. July 2, 2002), and in a subsequent suit seeking to compel the Fisheries Service to complete its consultation, see Complaint, Nw. Coal, for Alts, to Pesticides v. Nat'l Marine Fisheries Serv., No. 07-1791-RSL (W.D. Wash. Nov. 5, 2007), ECF No. 1. All four Applicants were plaintiffs in a 2004 suit challenging federal regulations aimed at streamlining the pesticide reregistration process. See Wash. Toxics Coal. v. U.S. Dep't of Interior, Fish & Wildlife Serv., 457 F.Supp.2d 1158 (W.D. Wash. 2006). More recently, when the Pesticide Manufacturers challenged the 2008 BiOp in Dow Agrosciences, the district court granted the four Applicants' unopposed motion for intervenor status. See August 2011 Order, Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., No. 09-824-AW (D. Md. Aug. 23, 2011), ECF No. 68 (authorizing permissive intervention under Rule 24(b)).

         Here, Applicants assert they are entitled to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. See Mot. to Intervene 8. They argue they have a substantial interest in protecting endangered salmon and steelhead from toxic pesticides and that a decision to invalidate the 2017 BiOp would frustrate their long-running efforts to protect those species. See Id. at 11-14. They further urge the Court to find the Fisheries Service cannot adequately represent their interest, explaining that "[t]he federal government has demonstrated a longstanding reluctance to adequately protect salmon and steelhead from pesticides." Id. at 15. Applicants' fallback position, should the Court decline to grant the intervention under Rule 24(a), is that they ought to at least enjoy the benefits of permissive intervention under Rule 24(b). See Id. at 16-17.

         The Fisheries Service took no position on the Applicants' motion. The Manufacturers, though, opposed it. Their response in opposition argues, first, that Applicants cannot have a "significantly protectable interest" in defending a BiOp that did not comply with statutory requirements, see Resp. in Opp'n 5-6, ECF No. 36, and, second, that a decision to vacate the BiOp would merely preserve the status quo, see Id. at 7. The Manufacturers go on to argue that the government, with its unmatched "expertise and familiarity with the issues," is best positioned to defend a suit over alleged defects in its own administrative proceedings. Id. at 8-9. They ask the Court to note that the Fisheries Service "already has demonstrated an interest in vigorously opposing" the suit, as evidenced by the agency's opposition to the Manufacturers' request to file a preliminary dispositive motion on procedural grounds. See Id. at 10-11 (citing Defs.' Meet & Confer Statement 4-5, ECF No. 31).

         All issues concerning the motion to intervene have been briefed in full. See ECF Nos. 24, 36, 40. No hearing is necessary. See Loc. R. 105.6.

         DISCUSSION

         Applicants seek to enter this litigation as intervenor-defendants in either of the following ways: (1) intervention as of right, under Rule 24(a);. or (2) permissive intervention, under Rule 24(b). They have not expressly requested the opportunity, in the alternative, to submit briefs as amici curiae, though I note that this, too, is a way third parties may make known their views ...


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