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Duane Grant, et al v. Thomas J. Vilsack

September 25, 2012

DUANE GRANT, ET AL.,
PLAINTIFFS,
MONSANTO COMPANY,
INTERVENOR PLAINTIFF,
v.
THOMAS J. VILSACK, ET AL., FEDERAL DEFENDANTS,
CENTER FOR FOOD SAFETY, ET AL.,
NON-GOVERNMENTAL DEFENDANTS. CENTER FOR FOOD SAFETY, ET AL., PLAINTIFFS,
v.
THOMAS J. VILSACK, ET AL.,
FEDERAL DEFENDANTS,
MONSANTO COMPANY,
INTERVENOR DEFENDANT,
DUANE GRANT, ET AL.,
INTERVENOR DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION & ORDER

Two groups of plaintiffs in these consolidated cases have brought actions challenging the U.S. Department of Agriculture's Animal and Plant Health Inspection Service's ("APHIS") interim decision partially deregulating a genetically engineered variety of sugar beet. APHIS has since issued a final decision fully deregulating the sugar beets, and the challenged interim decision has expired. For the reasons explained herein, the Court will dismiss these actions as moot.

BACKGROUND

Sugar beets are leafy green vegetables with a sucrose-rich tap root prized for domestic refined sugar production. A biennial crop, sugar beets develop the tap root in the first year (the vegetative stage) and a flowering seed stalk in the second year (the reproductive stage). This dispute concerns Roundup Ready sugar beets, which are genetically engineered to withstand glyphosate-based herbicides like the "Roundup" brand. When a gene from a species of Agrobacterium is inserted into the sugar beet, the plant's metabolic process becomes unaffected by glyphosate. Because such bacteria are identified as plant pests, 7 C.F.R. § 340.2(a), Roundup Ready sugar beets are regulated articles under the Plant Protection Act, 7 U.S.C. §§ 7701 et seq.

APHIS originally deregulated Roundup Ready sugar beets in 2005 upon petition by Monsanto Company ("Monsanto") and KWS SAAT AG (KWS). A federal court in California vacated the deregulation decision several years later, finding the agency's assessment of the environmental impact inadequate, in particular as to the possibility that genetically engineered sugar beets will cross pollinate with and contaminate non-genetically engineered plants. Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 950, 955 (N.D. Cal. 2010); see also Ctr. for Food Safety v. Vilsack, No. 08-484, 2009 WL 3047227, at *6-9 (N.D. Cal. Sept. 21, 2009).

After the vacatur, Roundup Ready sugar beet companies applied for permits to plant sugar beet seedlings, called stecklings. In August 2010, APHIS issued four temporary permits, authorizing steckling growth on several hundred acres, but prohibiting flowering or pollination and requiring applicants to remove and destroy any flowering plants. Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1170-71 (9th Cir. 2011). A group of plaintiffs led by Center for Food Safety challenged the permits, and the district court granted a preliminary injunction requiring the destruction of stecklings planted under the permits. The Ninth Circuit reversed, holding that plaintiffs failed to show a likelihood of irreparable injury. Id. at 1174. The permits then expired, and on remand the district court granted defendants' motion to dismiss as moot because plaintiffs failed to satisfy the exception for actions capable of repetition yet evading review. Ctr. for Food Safety v. Vilsack, No. 10-4038 (N.D. Cal. Apr. 14, 2011). Plaintiffs appealed, and that appeal is now pending before the Ninth Circuit.

APHIS then issued the decision at issue here. It deregulated Roundup Ready root crop production and seed crop production when conducted under certain mandatory conditions, and it did so "on an interim basis" while an environmental assessment for the full deregulation could proceed. 76 Fed. Reg. 6759, 6759 (Feb. 8, 2011). The interim decision provided that it would be in effect until December 31, 2012, or until APHIS issued a final determination as to full deregulation. Id. at 6761.

Sugar beet farmers (together with plaintiff-intervenor Monsanto Company, hereinafter "Grant plaintiffs") filed suit, challenging three mandatory conditions imposed by APHIS's interim decision. Grant v. Vilsack, No. 11-308 (Feb. 7, 2011). Center for Food Safety and others (hereinafter "CFS plaintiffs") also filed suit, seeking to enjoin the interim decision for alleged failure to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., arguing (1) that APHIS's environmental assessment was procedurally and substantively inadequate, and (2) that by separating the permitting decision from the partial deregulation, APHIS engaged in impermissible segmenting that tainted the analysis. Ctr. for Food Safety v. Vilsack, No. 11-586 (Feb. 23, 2011). This Court consolidated the cases and the parties filed motions and cross-motions for summary judgment. On July 20, 2012, APHIS published a final determination, granting the petition for full deregulation. 77 Fed. Reg. 42,693 (July 20, 2012). Accordingly, the interim partial deregulation decision at issue here expired on that date. Because the challenged decision had expired, the Court ordered the parties to file supplemental briefs on mootness.

STANDARD OF REVIEW

"The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (citation omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." (emphasis added)).

ANALYSIS

I.Background

Article III of the Constitution limits federal court jurisdiction to "'actual, ongoing controversies.'" Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 78 (D.C. Cir. 2011) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). "[A] federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks omitted).

Hence, in order to satisfy Article III, a plaintiff must demonstrate that a case or controversy exists at all stages of the litigation. See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990); see also Spencer v. Kemna, 523 U.S. 1, 7 (1998) ("[T]hroughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." (internal quotation marks omitted)). "Even where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently ...


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