United States District Court, D. Maryland, Southern Division
MAKHTESHIM AGAN OF NORTH AMERICA, INC. et al., Plaintiffs,
NATIONAL MARINE FISHERIES SERVICE et al. Defendants.
W. GRIMM, UNITED STATES DISTRICT JUDGE
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.
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.
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.
brief, the manufacturers that brought this suit
(collectively, the "Pesticide Manufacturers" or
"Manufacturers") 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.
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.
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.
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)).
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.
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).
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.
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 ...