Geertson Seed Farms v. Monsanto Company

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEERTSON SEED FARMS, an Oregon 
business; TRASK FAMILY SEEDS a
South Dakota business; CENTER
FOR FOOD SAFETY, a Washington
DC nonprofit corp.; BEYOND
PESTICIDES, a Washington DC
nonprofit corp.; CORNUCOPIA
INSTITUTE, a Wisconsin nonprofit
corp.; DAKOTA RESOURCE COUNCIL,
a North Dakota nonprofit corp.;
NATIONAL FAMILY FARM COALITION,
a Michigan nonprofit corp.; SIERRA
CLUB, a California nonprofit corp.;
WESTERN ORGANIZATION OF
RESOURCE COUNCILS a Montana No. 07-16458
nonprofit corp.,  D.C. No.
Plaintiffs-Appellees, CV-06-01075-CRB
v.
MIKE JOHANNS, in his official
capacity as Secretary of the U.S.
Department of Agriculture; STEVE
JOHNSON, in his official capacity as
Administrator of the U.S.
Environmental Protection Agency;
RON DEHAVEN, in his official
capacity as Administrator of the
Animal Plant Health and
Inspection Service, U.S.
Department of Agriculture,
Defendants,

7867
7868 GEERTSON SEED FARMS v. MONSANTO COMPANY
FORAGE GENETICS, INC.; JOHN 
GROVER; DANIEL MADEROS; MARK
WATTE,
Defendant-intervenors,

and
MONSANTO COMPANY,
Defendant-intervenor-Appellant.

GEERTSON SEED FARMS, an Oregon 
business; TRASK FAMILY SEEDS a
South Dakato business; CENTER
FOR FOOD SAFETY, a Washington
DC nonprofit corp.; BEYOND
PESTICIDES, a Washington DC
nonprofit corp.; CORNUCOPIA
INSTITUTE, a Wisconsin nonprofit
corp.; DAKOTA RESOURCE COUNCIL,
a North Dakota nonprofit corp.;
NATIONAL FAMILY FARM COALITION,
a Michigan nonprofit corp.; SIERRA No. 07-16492
CLUB, a California nonprofit corp.;  D.C. No.
WESTERN ORGANIZATION OF CV-06-01075-CRB
RESOURCE COUNCILS a Montana
nonprofit corp.,
Plaintiffs-Appellees,
v.
MIKE JOHANNS, in his official
capacity as Secretary of the U.S.
Department of Agriculture; STEVE
JOHNSON, in his official capacity as
Administrator of the U.S.
Environmental Protection Agency;

GEERTSON SEED FARMS v. MONSANTO COMPANY 7869
RON DEHAVEN, in his official 
capacity as Administrator of the
Animal Plant Health and
Inspection Service, U.S.
Department of Agriculture,
Defendants,
MONSANTO COMPANY,
Defendant-intervenor,

and
FORAGE GENETICS, INC.; JOHN
GROVER; DANIEL MADEROS; MARK
WATTE,
Defendant-intervenors-Appellants.

TRASK FAMILY SEEDS a South 
Dakota business; CENTER FOR FOOD
SAFETY, a Washington DC
nonprofit corp.; BEYOND
PESTICIDES, a Washington DC
nonprofit corp.; CORNUCOPIA
INSTITUTE, a Wisconsin nonprofit No. 07-16725
corp.; DAKOTA RESOURCE COUNCIL, D.C. No.

a North Dakota nonprofit corp.; CV-06-01075-CRB
NATIONAL FAMILY FARM COALITION,
ORDER AND
a Michigan nonprofit corp.; SIERRA
AMENDED
CLUB, a California nonprofit corp.;
OPINION
WESTERN ORGANIZATION OF
RESOURCE COUNCILS a Montana
nonprofit corp.; GEERTSON SEED
FARMS, an Oregon business,
Plaintiffs-Appellees,
and

7870 GEERTSON SEED FARMS v. MONSANTO COMPANY
GEERTSON SEED FARMS, an Oregon 
Corp.,
Plaintiff,
v.
MIKE JOHANNS, in his official
capacity as Secretary of the U.S.
Department of Agriculture; STEVE
JOHNSON, in his official capacity as
Administrator of the U.S.
Environmental Protection Agency;
RON DEHAVEN, in his official
capacity as Administrator of the
Animal Plant Health and 
Inspection Service, U.S.
Department of Agriculture; STEVE
JOHNSON, in his official capacity as
Administrator of the United States
Environmental Protection Agency,
Defendants-Appellants
and
MONSANTO COMPANY; FORAGE
GENETICS, INC.; JOHN GROVER;
DANIEL MADEROS; MARK WATTE,
Defendant-intervenors

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted June 10, 2008
San Francisco, California
Filed June 24, 2009
GEERTSON SEED FARMS v. MONSANTO COMPANY 7871
Before: Mary M. Schroeder and N. Randy Smith,
Circuit Judges, and Valerie Fairbank,* District Judge.
Opinion by Judge Schroeder
Dissent by Judge N. Smith
*The Honorable Valerie Fairbank, United States District Judge for the
Central District of California, sitting by designation.
7874 GEERTSON SEED FARMS v. MONSANTO COMPANY
COUNSEL
Marc Kesselman, Washington, D.C., for defendants-
intervenors/appellants Government.
Maureen Mahoney, Washington, D.C., for defendants-
intervenors/appellants Monsanto et al.
George Kimbrell, Washington, D.C., for the plaintiffs-
appellees.
ORDER
The opinion and dissent filed September 2, 2008, and
appearing at 541 F.3d 938 (9th Cir. 2008), are hereby
GEERTSON SEED FARMS v. MONSANTO COMPANY 7875
amended. The amended opinion and dissent are filed concur-
rently with this Order.
With these amendments, Judges Schroeder and Fairbank
have voted to deny the petition for panel rehearing and recom-
mend denial of the petition for rehearing en banc. Judge N.R.
Smith votes to grant the petition for panel rehearing and
rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and rehearing en banc is
DENIED. No further petitions for rehearing will be accepted.
OPINION
SCHROEDER, Circuit Judge:
The Monsanto Company (“Monsanto”) is a large-scale
manufacturer of chemical products, including herbicides and
pesticides. In the 1990s it began developing a variety of
alfalfa that would be resistant to one of its leading herbicides.
The United States Department of Agriculture, through the
Animal and Plant Health Inspection Service (“APHIS”),
approved the genetically modified alfalfa in 2005.
This is an appeal from an injunction entered by the district
court enjoining future planting of Monsanto alfalfa, called
“Roundup Ready alfalfa,” pending the preparation by APHIS
of an environmental impact statement (“EIS”). The injunction
was sought by plaintiffs Geertson Seed Farms and Trask Fam-
ily Seeds, conventional alfalfa-seed farms, together with envi-
ronmental groups, because they fear cross-pollination of the
new variety with other alfalfa, thereby possibly causing con-
7876 GEERTSON SEED FARMS v. MONSANTO COMPANY
ventional alfalfa to disappear. Monsanto and its licensee, For-
age Genetics, Inc. (“Forage Genetics”), intervened on the side
of the government defendants. Monsanto, Forage Genetics,
and the government pursue this appeal.
There are no issues of law and we therefore review for
abuse of discretion. See Idaho Watersheds Project v. Hahn,
307 F.3d 815, 823 (9th Cir. 2002). We affirm because the dis-
trict court did not abuse its discretion in entering the injunc-
tion after holding one hearing on the nature of the violation
of the National Environmental Policy Act of 1969 (“NEPA”),
42 U.S.C. § 4332(C), and two hearings on the scope of
injunctive relief, as well as reviewing extensive documentary
submissions relating to an appropriate remedy. The injunction
is limited in duration to the time necessary to complete the
EIS. The existence of the NEPA violation is not disputed on
appeal.
Background
Roundup Ready alfalfa is an alfalfa crop that was geneti-
cally engineered by Monsanto to be tolerant of glyphosate,
which is the active ingredient in its herbicide Roundup. The
particular lines of genetically engineered alfalfa that are at
issue here were designated as events J101 and J163
(“Roundup Ready alfalfa”). Monsanto owns the intellectual
property rights to Roundup Ready alfalfa and licenses the
technology to Forage Genetics, who is the exclusive devel-
oper of Roundup Ready alfalfa seed.
APHIS, a division of the United States Department of Agri-
culture, has the authority to regulate “the introduction of
organisms and products altered or produced through genetic
engineering that are plant pests or are believed to be plant
pests,” or “regulated articles.” See 7 C.F.R. § 340.0(a)(2) &
n.1. APHIS initially classified Roundup Ready alfalfa as a
regulated article. Monsanto submitted a petition in April 2004
requesting nonregulated status for events J101 and J163.
GEERTSON SEED FARMS v. MONSANTO COMPANY 7877
APHIS had three options: it could take no action, in which
case Roundup Ready alfalfa would continue to be a regulated
article; it could unconditionally deregulate Roundup Ready
alfalfa, which would require the agency to make a finding of
no significant impact; or it could partially deregulate Roundup
Ready alfalfa, either by approving some but not all of the
lines involved, or by approving the petition but imposing geo-
graphic restrictions.
APHIS published a notice in the Federal Register in
November 2004 advising the public of Monsanto’s petition
and soliciting comments. It explained that APHIS had pre-
pared an Environmental Assessment (“EA”) in accordance
with NEPA and its implementing regulations. In the EA,
APHIS explained that alfalfa is pollinated by insects, primar-
ily bees, and that insect pollination has been documented as
occurring up to 2 miles from the pollen source. With regard
to the threat of possible genetic contamination of non-
genetically engineered alfalfa, it explained that the National
Organic Program mandates buffer zones around organic pro-
duction operations, the size of which are decided by the
organic producer and the certifying agent on a case-by-case
basis. The EA concluded that it was therefore unlikely that
Roundup Ready alfalfa would have a significant impact on
organic farming.
APHIS received 663 comments, 520 of which opposed the
petition and 137 of which supported it. Most of the comment-
ing alfalfa growers and seed producers supported it because
they said there was a demand for weed-free alfalfa, and
Roundup Ready alfalfa would provide farmers a new option
for weed control by allowing farmers to apply herbicide after
weeds have germinated. Most of the academic professionals,
agricultural support industries, and growers associations who
commented supported the petition as well. Opponents of the
petition, who included organic and conventional alfalfa grow-
ers, cited concerns that inadvertent gene transmission would
occur, and that foreign and domestic markets may not accept
7878 GEERTSON SEED FARMS v. MONSANTO COMPANY
products that cannot be guaranteed to be non-genetically engi-
neered. They urged a full environmental evaluation through
an EIS that would analyze the environmental effects of all the
alternatives. See Natural Res. Def. Council, Inc. v. Winter,
518 F.3d 658, 688 (9th Cir. 2008) (“NEPA’s procedural
requirements mandate that an agency take a ‘hard look’ at the
environmental consequences of its actions.”), overruled on
other grounds by Winter v. Natural Res. Def. Council, Inc.,
129 S. Ct. 365 (2008).
On the basis of the EA and after considering the comments
received, APHIS in June 2005 made a finding of no signifi-
cant impact. See 70 Fed. Reg. 36,917, 36,918 (June 27, 2005).
It therefore concluded that it did not need to prepare an EIS,
and it unconditionally deregulated Roundup Ready alfalfa.
Plaintiffs filed this action in February 2006, alleging viola-
tions of NEPA and other federal statutes. The district court
first considered whether APHIS had violated NEPA. After a
hearing on plaintiffs’ and defendants’ motions for summary
judgment, the district court granted plaintiffs’ motion in Feb-
ruary 2007, holding that APHIS had violated NEPA by
deregulating Roundup Ready alfalfa without first preparing an
EIS. The court ruled APHIS had failed to take the required
“hard look” at whether and to what extent the unconditional
deregulation of Roundup Ready alfalfa would lead to genetic
contamination of non-genetically engineered alfalfa. The dis-
trict court then turned to the issue of an appropriate remedy
for the violation.
Monsanto and Forage Genetics intervened in the action at
the remedies phase. They argued that growers had already
purchased Roundup Ready alfalfa seed in preparation for the
spring planting season, which was underway and would be
ending soon, and that it would be difficult for those growers
to purchase other seed in time to plant it. After hearing argu-
ment, the court entered a preliminary injunction on March 12,
2007. The preliminary injunction enjoined all planting of
GEERTSON SEED FARMS v. MONSANTO COMPANY 7879
Roundup Ready alfalfa and all sales of Roundup Ready
alfalfa seed after March 30, 2007, pending the issuance of a
permanent injunction. This allowed farmers who were pre-
pared to plant Roundup Ready alfalfa immediately, and who
had already purchased the seed, to do so. The injunction also
allowed all Roundup Ready alfalfa that had been planted
since the deregulation decision to be grown, harvested, and
sold without restriction.
In April 2007, the court held a hearing on the scope of per-
manent injunctive relief. Plaintiffs sought to enjoin all future
planting of Roundup Ready alfalfa, as well as the harvesting
of any Roundup Ready alfalfa seed already planted, pending
the completion of an EIS and a new decision on deregulation;
they also requested the publication of the location of Roundup
Ready alfalfa crops. Defendants asked that planting go for-
ward, but not unconditionally. At the remedy stage, APHIS
agreed for the first time that any future planting should be
subject to certain conditions, including requiring isolation dis-
tances from other crops and requiring certain harvesting con-
ditions to minimize gene flow to non-genetically engineered
alfalfa seeds.
The district court considered voluminous evidentiary sub-
missions from both sides, including the detailed declarations
of multiple witnesses regarding the scope of permanent
injunctive relief and scientific papers on the factual issues
involved. The parties’ experts disagreed over virtually every
factual issue relating to possible environmental harm, includ-
ing the likelihood of genetic contamination and why some
contamination had already occurred. Defendants’ evidence
included declarations and live testimony by Forage Genetics’
president, Mark McCaslin, declarations of an APHIS official,
Neil Hoffman, and a declaration from a scientist at Colorado
State University, Bob Hammon, who had conducted a study
sponsored by Forage Genetics on pollen movement from
alfalfa-seed fields by bees. Plaintiffs’ evidence included Ham-
mon’s study, which they argued supports their position, as
7880 GEERTSON SEED FARMS v. MONSANTO COMPANY
well as declarations from seed growers whose crops had been
contaminated with the Roundup Ready gene and scientists
who opined that genetic contamination is likely to occur.
The court entered its permanent injunction in May 2007. It
adopted a middle course in determining the appropriate rem-
edy, enjoining new planting but refusing to enjoin harvesting
of already-planted Roundup Ready alfalfa. It declined to hold
a further hearing to resolve the issues that it said APHIS
should resolve in the EIS. “After carefully reviewing defen-
dants’ voluminous evidence, including the evidence submitted
in support of the intervenors’ surreply, as well as plaintiffs’
evidence, the Court declines to permit the expansion of the
Roundup Ready alfalfa market while APHIS conducts the
analysis it should have prepared before it allowed for the non-
permitted introduction of the crop in the first instance.”
Accordingly, the district court enjoined all planting of
Roundup Ready alfalfa after March 30, 2007, pending
APHIS’s completion of an EIS and its decision on the
deregulation petition. The district court rejected the conditions
proposed by the agency because it found that genetic contami-
nation had occurred when similar conditions were in place
pursuant to Forage Genetics’ contracts with Roundup Ready
alfalfa growers. The district court, however, also rejected the
Plaintiffs’ request to enjoin the harvesting and sale of
Roundup Ready alfalfa seed that had already been planted.
The court instead deferred to the agency and adopted “the rel-
evant conditions proposed by APHIS.”
Defendants, joined by intervenors Monsanto and Forage
Genetics (collectively, “appellants”), appeal the injunction,
arguing it is too broad, but neither the government nor the
intervenors now question the existence of a NEPA violation.
They dispute only the scope of the injunction, and whether the
district court should have held a further hearing before enjoin-
ing future planting.
GEERTSON SEED FARMS v. MONSANTO COMPANY 7881
Scope of the Permanent Injunction
Appellants argue that the district court erred in ordering
injunctive relief because it improperly presumed irreparable
injury instead of applying the traditional four-factor test for
the issuance of a permanent injunction, as required under
eBay v. MercExchange, L.L.C., 547 U.S. 388 (2006). They
argue that, as a result, the district court’s injunction was over-
broad because the court did not consider the likelihood of
potential harm if Roundup Ready alfalfa was planted subject
to the mitigation measures proposed by APHIS.
[1] To obtain permanent injunctive relief, a plaintiff must
show “ ‘(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant,
a remedy in equity is warranted; and (4) that the public inter-
est would not be disserved by a permanent injunction.’ ” N.
Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007)
(quoting eBay, 547 U.S. at 391). This traditional balancing of
harms applies in the environmental context. Forest Conserva-
tion Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 (9th Cir.
1995); see also Lands Council v. McNair, ___ F.3d ___, 2008
WL 2640001, at *21 (9th Cir. July 2, 2008) (en banc) (“Our
law does not . . . allow us to abandon a balance of harms anal-
ysis just because a potential environmental injury is at
issue.”). In determining the scope of an injunction, a district
court has “ ‘broad latitude,’ ” High Sierra Hikers Ass’n v.
Blackwell, 390 F.3d 630, 641 (9th Cir. 2004) (quoting Natural
Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 999 (9th
Cir. 2000)), and it “ ‘must balance the equities between the
parties and give due regard to the public interest,’ ” N. Chey-
enne Tribe, 503 F.3d at 842-43 (quoting High Sierra, 390
F.3d at 642).
[2] The Supreme Court has recognized that “the balance of
harms will usually favor the issuance of an injunction to pro-
7882 GEERTSON SEED FARMS v. MONSANTO COMPANY
tect the environment” if injury is found to be sufficiently
likely because “[e]nvironmental injury, by its nature, can sel-
dom be adequately remedied by money damages and is often
permanent or at least of long duration, i.e., irreparable.”
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545
(1987). In Amoco, the Court held that a preliminary injunction
had been improperly ordered because injury to the environ-
ment was “not at all probable.” Id. This court has recognized
that even when a district court finds that a NEPA violation
occurred, “in ‘unusual circumstances’ an injunction may be
withheld, or, more likely, limited in scope.” Nat’l Parks &
Conservation Ass’n v. Babbitt, 241 F.3d 722, 737 n.18 (9th
Cir. 2001) (citing Forest Conservation Council, 66 F.3d at
1496).
[3] The Supreme Court held in eBay that courts cannot
grant or deny injunctive relief categorically in place of apply-
ing the four-factor test. 547 U.S. at 394. The district court in
that case had suggested that patent holders who license their
patents do not suffer irreparable harm. Id. at 393. The Court
held that the district court had erred in adopting “expansive
principles suggesting that injunctive relief could not issue in
a broad swath of cases.” Id. It held that the reversing court of
appeals had also erred because it too had applied a categorical
rule, that injunctions in patent cases should generally be
granted once infringement and validity are established except
in the “unusual case, under exceptional circumstances.” Id. at
394 (internal quotation marks omitted). The Court held “that
the decision whether to grant or deny injunctive relief rests
within the equitable discretion of the district courts, and that
such discretion must be exercised consistent with traditional
principles of equity . . . .” Id.[4] Here, the record demonstrates that the district court
applied the traditional four-factor test, required by eBay,
before issuing its injunction. It expressly recognized that an
injunction does not “automatically issue” when a NEPA vio-
lation is found and said that it was required to “engage in the
GEERTSON SEED FARMS v. MONSANTO COMPANY 7883
traditional balance of harms analysis.” The court then dis-
cussed each of the four factors of the traditional balancing test
and concluded that the equities favored an injunction against
the future planting of Roundup Ready alfalfa.
With respect to harm, the court found that genetic contami-
nation of organic and conventional alfalfa had already
occurred, and it had occurred while Monsanto and Forage
Genetics had contractual obligations in place that were similar
to their proposed mitigation measures. It held that such con-
tamination was irreparable environmental harm because con-
tamination cannot be reversed and farmers cannot replant
alfalfa for two to four years after contaminated alfalfa has
been removed. The court also reasoned that appellants would
be unable to enforce compliance with any proposed mitigation
measures, given the government’s admitted lack of resources.
The court therefore did not presume that irreparable harm was
likely to occur only on the basis of the NEPA violation; it
concluded that plaintiffs had established that genetic contami-
nation was sufficiently likely to occur so as to warrant broad
injunctive relief, though narrower than the blanket injunction
sought by plaintiffs. See Winter v. Natural Res. Def. Council,
Inc., 129 S. Ct. 365, 375 (2008).
Appellants contend the district court did not take into
account the evidence demonstrating that the likelihood of hay-
to-hay transmission is extremely low because hay is harvested
before the crops bloom to 10%. The district court examined
the evidence and found that weather conditions could prevent
farmers from harvesting hay before 10% bloom, citing the tes-
timony of Forage Genetics’ president. The district court’s
finding was not clearly erroneous.
After considering the likelihood of irreparable injury, the
court next considered the balance of hardships. The harm to
appellants was economic, and the court reasoned that
Roundup Ready alfalfa accounted for only 15% of Forage
Genetics’ total revenue and “much, much less of Monsan-
7884 GEERTSON SEED FARMS v. MONSANTO COMPANY
to’s.” It also found that any unsold seed appears to be storable
for planting in later years. The court’s injunction allowed
Roundup Ready alfalfa that had already been planted and that
was to be planted before March 30 to remain, subject to cer-
tain conditions, and only enjoined future planting, which dem-
onstrates that the court crafted a remedy that accounted for the
hardships to both sides. Monsanto and Forage Genetics con-
tend that the district court disregarded their financial losses,
but the district court considered those economic losses and
simply concluded that the harm to growers and consumers
who wanted non-genetically engineered alfalfa outweighed
the financial hardships to Monsanto and Forage Genetics and
their growers.
The district court finally considered the public interest, the
fourth factor in the framework for injunctive relief. See N.
Cheyenne Tribe, 503 F.3d at 843. The court, while recogniz-
ing that agricultural biotechnology has social value, held that
it would be in the public interest to enjoin the expanded use
of Roundup Ready alfalfa before its impact was studied,
because failing to do so could potentially eliminate the avail-
ability of non-genetically engineered alfalfa.
Appellants rely on Northern Cheyenne for the proposition
that a narrower injunction should be entered here. In that case,
we affirmed a district court’s injunction. Id. at 846. Northern
Cheyenne does not support a reversal in this case. There, the
Bureau of Land Management (“BLM”) had violated NEPA
because its EIS failed to study an alternative method of devel-
opment that the plaintiffs wanted the BLM to consider. See id.
at 841, 844. The injunction permitted one method to proceed
and prohibited other activity pending full compliance with
NEPA. Id. We held that the district court’s injunction was not
an abuse of discretion. That conclusion does not support a
holding that the injunction in this case was an abuse of discre-
tion. APHIS did not take the requisite “hard look” at the
impact of any form of deregulation on the environment. See
Nat. Res. Defense Council, 518 F.3d at 688.
GEERTSON SEED FARMS v. MONSANTO COMPANY 7885
[5] Appellants also argue that the district court should have
deferred to APHIS’s proposed interim measures because of
the expertise of the government agency, despite the agency’s
now undisputed failure to comply with NEPA. They rely pri-
marily on Idaho Watersheds Project, 307 F.3d 815. However,
that case does not require a district court to adopt an agency’s
proposed measures as a matter of law. In Idaho Watersheds,
to determine the terms of an injunction to protect land and
streams from the effects of too much cattle grazing pending
the BLM’s compliance with NEPA, the district court adopted
the interim measures proposed by the BLM to respond to
environmental injury, which the court thought represented a
“balanced approach.” Id. at 823, 830-31. Affirming, we said
that “the Ninth Circuit has shown considerable deference for
factual and technical determinations implicating substantial
agency expertise.” Id. at 831. Here, the agency’s proposed
interim measures would perpetuate a system that was found
by the district court to have caused environmental harm in the
past. While the agency’s response may deserve deference,
Idaho Watersheds does not require the district court to adopt
it automatically. The district court did not abuse its discretion
in choosing to reject APHIS’s proposed mitigation measures
in favor of a broader injunction to prevent more irreparable
harm from occurring.
[6] The district court applied the traditional balancing test,
and not a categorical rule, in fashioning the injunction here,
see eBay, 547 U.S. at 394, and its factual conclusions were
not clearly erroneous. The district court therefore did not
abuse its discretion in formulating the remedy.
Lack of an Evidentiary Hearing
[7] Monsanto and Forage Genetics also argue that the dis-
trict court erred in declining to hold an evidentiary hearing
before entering the permanent injunction. The district court
had already held a hearing on whether an EIS was required,
and heard testimony during a March hearing from Forage
7886 GEERTSON SEED FARMS v. MONSANTO COMPANY
Genetics’ president on the scope of preliminary injunctive
relief.
Monsanto and Forage Genetics requested that the district
court hold an evidentiary hearing before issuing the perma-
nent injunction so that the district court could, as described by
that court, “assess the viability of its witnesses’ opinions
regarding the risk of contamination if APHIS’s proposed con-
ditions are imposed, as well as to resolve disputes with plain-
tiffs’ witnesses.” This evidence concerned the degree of the
risk of environmental damage. There were voluminous docu-
mentary submissions from both sides disputing, among other
things, the likelihood of genetic contamination of non-
Roundup Ready alfalfa fields. APHIS did not request an evi-
dentiary hearing.
The district court reviewed the documentary submissions,
but it declined to hold a further hearing. It explained that
holding the type of evidentiary hearing suggested by the inter-
venors “would require this Court to engage in precisely the
same inquiry it concluded APHIS failed to do and must do in
an EIS; defendants are in effect asking this Court to accept its
truncated EIS without the benefit of the development of all
the relevant data and, importantly, without the opportunity for
and consideration of public comment.” The court cited Idaho
Watersheds in concluding that it did not need to conduct an
extensive inquiry, involving scientific determinations, to
determine what interim measures are necessary to protect the
environment “while the [government] conducts studies in
order to make the very same scientific determinations.” 307
F.3d at 831.
Monsanto and Forage Genetics are correct that generally, a
district court must hold an evidentiary hearing before issuing
a permanent injunction unless the adverse party has waived its
right to a hearing or the facts are undisputed. See United
States v. Microsoft Corp., 253 F.3d 34, 101-03 (D.C. Cir.
2001); Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th
GEERTSON SEED FARMS v. MONSANTO COMPANY 7887
Cir. 1988). The district court did not believe defendants had
established any material issues of fact that were in dispute in
the case before the court. Rather, it viewed the disputed mat-
ters to be issues more properly addressed by the agency in the
preparation of an EIS.
[8] The injunction at issue here, as in Idaho Watersheds, is
not a typical permanent injunction, which is of indefinite
duration. A permanent injunction to ensure compliance with
NEPA has a more limited purpose and duration. Thus, in
Idaho Watersheds, a case involving a NEPA violation, this
court held that an evidentiary hearing was not required before
issuing an injunction. See 307 F.3d at 831. We distinguished
this context from Microsoft, and the “normal injunctive set-
ting,” principally because Idaho Watersheds involved interim
measures that would be in place only until the EIS was com-
pleted, at which point the parties would have “extensive
input” into the determination of which measures would be
adopted permanently. Id. at 831; accord Mont. Wilderness
Ass’n v. Fry, 310 F. Supp. 2d 1127, 1155-56 (D. Mont. 2004)
(holding that, under Idaho Watersheds, an evidentiary hearing
was not required before imposing interim injunctive relief).
The district court there had sought to avoid the catch-22 situa-
tion where an evidentiary hearing would require it to perform
the same type of extensive inquiry into environmental effects
that the ordered EIS will require the government agency to
perform. Idaho Watersheds, 307 F.3d at 831. We agreed with
the district court’s approach, holding that an evidentiary hear-
ing was not required because the measures were “interim
measures designed to allow for a process to take place which
will determine permanent measures, and all parties will have
adequate opportunity to participate in the determination of
permanent measures (and if need be challenge the outcome in
court).” Id. We observed that requiring a hearing would dupli-
cate the BLM’s efforts and divert its resources from those
efforts. Id. The district court here correctly denied a hearing
because the same situation is presented in this case.
7888 GEERTSON SEED FARMS v. MONSANTO COMPANY
Monsanto and Forage Genetics also contend that even if
Idaho Watersheds authorizes entry of a permanent injunction
without an evidentiary hearing, it does so only if the court
adopts the agency’s recommendation. We explained in Idaho
Watersheds, however, that the key reason a further evidenti-
ary hearing was not required was that the injunction would be
in place only until the necessary environmental studies were
conducted. Id. In this case, as in Idaho Watersheds, the gov-
ernment does not contend that a further hearing is required,
perhaps in order to avoid the duplication of resources we
described in Idaho Watersheds. The dissent insists on
remanding for a hearing that the government has never con-
tended would be appropriate in this case.
The district court here considered extensive evidentiary
submissions from all parties pertaining specifically to the
remedy phase, as it was required to do. See Microsoft, 253
F.3d at 103 (holding that district court had erred in failing to
consider the remedies-phase evidentiary submissions of
defendant). It held two hearings during the remedies phase,
one of which included testimony from the president of Forage
Genetics on the scope of preliminary injunctive relief. It then
determined that it should not conduct a hearing that would
duplicate APHIS’s efforts in preparing the EIS ordered by the
court.
[9] The dissent is thus incorrect in stating that the district
court failed to hold an evidentiary hearing because the district
court held one hearing on the nature of the NEPA violation,
two hearings on the scope of injunctive relief, which included
testimony from Forage Genetics’ president, and reviewed
extensive documentary submissions relating to an appropriate
remedy. What the district court did not do was to hold an
additional evidentiary hearing to resolve the very disputes
over the risk of environmental harm that APHIS would have
to consider in the EIS. Nor is the dissent correct that the dis-
trict court should have given conclusive deference to the lim-
ited mitigation measures APHIS proposed during the remedy
GEERTSON SEED FARMS v. MONSANTO COMPANY 7889
phase. The district court adopted all of APHIS’s proposed
conditions that pertained to alfalfa that was already planted.
But because the court had already determined that future
planting should be enjoined pending the EIS, the court
declined to impose APHIS’s conditions that would have per-
mitted future planting. Under these circumstances, there was
no abuse of discretion.
[10] The injunction involved only interim measures pend-
ing APHIS’s compliance with NEPA, and the district court
considered extensive remedies-phase evidence. The court did
not err in declining to hold a further hearing before entering
the injunction pending the agency’s completion of environ-
mental study the law undisputedly required it to perform
before approving this product for unrestricted use.
The district court’s order is AFFIRMED.
N. RANDY SMITH, Circuit Judge, dissenting:
The district court’s failure to conduct the requisite evidenti-
ary 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 alto-
gether new exception to the evidentiary hearing requirement
we recognized in Charlton.
The majority acknowledges that the facts were sharply dis-
puted by the parties. To be sure, the parties disputed almost
7890 GEERTSON SEED FARMS v. MONSANTO COMPANY
every element of the facts underlying the proposed injunction.
Specifically, the parties disputed the risk of genetic contami-
nation that could occur if the district court did not enjoin the
further planting of Roundup Ready alfalfa while APHIS pre-
pared the EIS. Given that the parties disputed the facts under-
lying 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’ wit-
nesses.” In discussing Monsanto’s and Forage Genetics’
request for an evidentiary hearing, the majority notes
APHIS’s failure to request an evidentiary hearing. This fail-
ure, 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 require-
ment 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 alto-
gether 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 issues
that APHIS must resolve in conjunction with the EIS.
As the majority correctly recognizes, we affirmed the dis-
trict court’s refusal to conduct an evidentiary hearing in Idaho
GEERTSON SEED FARMS v. MONSANTO COMPANY 7891
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 effi-
cient resolution pending completion of the agency determina-
tions. 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 require-
ments 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 fail-
ure 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 hear-
ings on motions by the parties. In five of these hearings, only
argument by lawyers was heard. In one hearing Forage Genet-
ics 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 aforemen-
7892 GEERTSON SEED FARMS v. MONSANTO COMPANY
tioned 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 submis-
sions 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 fur-
ther 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 perma-
nent injunction based on argument of counsel, the written
record, and ad hoc testimony from Mr. McCaslin. These
shortcomings are significant, because the district court might
have reached a different result had it held an evidentiary hear-
ing 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, lis-
tening 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 wit-
nesses’ credibility in the face of cross examination. That step
GEERTSON SEED FARMS v. MONSANTO COMPANY 7893
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 trans-
mission 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 distribu-
tors who planned on RRA alfalfa being available. I would be
more comfortable with a nationwide injunction had the dis-
trict court held an evidentiary hearing to consider live testi-
mony, 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 evi-
dentiary hearing, the majority has created a third exception to
the evidentiary hearing requirement. Under this decision, a
district court now can forego conducting an evidentiary hear-
ing 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
7894 GEERTSON SEED FARMS v. MONSANTO COMPANY
decision regarding the controversy. Instead of giving defer-
ence to the agency’s expertise, see The Lands Council v.
McNair, ___ F.3d ___, 2008 WL 2640001, *4, *8-9 (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.