Ninth Circuit Dicamba Battle

New Dicamba Registration Complicates Lawsuit in the Ninth Circuit Court of Appeals

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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The Ninth Circuit Court of Appeals is weighing a lawsuit challenging the original dicamba registrations. Monsanto and EPA argue it should be dismissed now that the 2018 registration is in place. (DTN photo graphic)

ROCKVILLE, Md. (DTN) -- EPA's decision to continue the registration of three dicamba herbicides has reverberated far beyond D.C. -- through Midwest soybean fields, Southern cotton fields and all the way to Seattle, Washington, where the U.S. Ninth Circuit Court of Appeals is mulling a lawsuit over these very herbicides.

Monsanto and EPA are now arguing that this lawsuit, which claims the original dicamba registrations are illegal and should be vacated, is "moot" and should be dismissed entirely.

The court's decision could have repercussions for U.S. farmers, who -- operating under the expectation that dicamba applications will remain legal -- plan to plant 60 million acres of dicamba-tolerant soybeans and cotton in 2019.

The lawsuit was first filed against EPA in 2017 by four farm and environmental groups: National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America. The groups argue that the federal agency broke the law when it first registered three dicamba herbicides (XtendiMax, FeXapan and Engenia) in 2016 for over-the-top use on Xtend soybean and cotton crops, by ignoring key requirements of the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In August, three judges from the Ninth Circuit Court of Appeals heard arguments from both sides (see the video here:…) and then retired to consider their ruling.

Then just two days after EPA's dicamba registration decision landed late on Halloween night 2018, lawyers for Monsanto (now part of Bayer) filed a motion to dismiss the lawsuit entirely.

"As a result of EPA's issuance of the new, superseding 2018 Registration, the 2016 Registration that Petitioners challenge is no longer in force, and a court order vacating that registration would have no legal or practical effect," the lawyers wrote in their motion, available via the court's electronic case filing system. "The petition for review of the 2016 Registration is therefore moot, and this Court accordingly should dismiss the petition for lack of jurisdiction."

The lawyers took pains to characterize the 2018 registrations as new: "EPA evaluated an extensive body of new scientific evidence, compiled a new administrative record, conducted new environmental analyses, imposed new conditions, and issued new decision documents justifying its determinations," they wrote. "... Moreover, EPA's new scientific determinations, the new studies and other new record materials, and the new conditions on use, address many of the concerns raised by Petitioners in this case regarding the 2016 Registration."

A week and a half later, on November 13, the EPA filed a response supporting Monsanto's motion to dismiss. That same day, the National Family Farm Coalition, et al. responded, urging the court to deny Monsanto's motion.

"We believe the case is not moot -- the same legal errors that we spent two years putting in front of the court and arguing for in August are all still there," George Kimbrell, an attorney for the Center for Food Safety, told DTN. "For example, they still have not consulted with the U.S. Fish and Wildlife Service as the Endangered Species Act requires and they haven't protected farmers from vapor drift and volatility."

Kimbrell noted that EPA did not classify the 2018 registrations as "new" in its own registration documents, instead announcing their intention "to extend" the original dicamba registrations, with label amendments -- just as the agency did in 2017.

"If -- as we argue -- the 2016 and 2017 decisions were unlawful, then there is nothing for them to extend," he said. "If the foundation is rotting, anything you build on top of it must go as well."

The National Family Farm Coalition, et al., also argued that allowing Monsanto's motion to dismiss would allow EPA to push off a court ruling on their arguments indefinitely, by continuously amending the original registration and claiming mootness.

Finally, the National Family Farm Coalition, et al., argued that should the court agree with Monsanto's mootness argument, they shouldn't be forced to file a new case. "We asked that we should be allowed to amend this one, expedite the briefing and get a decision before March because we know when planting season begins again, so will dicamba spraying," Kimbrell said.

On November 20, Monsanto filed a response to this, calling it inaccurate and stressing that the 2018 dicamba registration "supersedes" all previous registrations.

Now all eyes rest on the judges of the Ninth Circuit, who will issue a decision on Monsanto's motion in the coming weeks or months.

In the meantime, growers must make decisions on seed and herbicide purchases and plan if and how they will apply dicamba in 2019, lending urgency to the court's decision, Kimbrell said.

"We need to have guidance by then," he said.

Emily Unglesbee can be reached at

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Emily Unglesbee