Ninth Circuit Denies Stay in Dicamba Case

On June 3, the Ninth Circuit released an opinion canceling the registration of three over the top dicamba herbicide products, including BASF’s Engenia. BASF, who was not a party in the case at that time, intervened in the case and filed a motion to recall and stay the mandate in mid-June. Judges Hawkins, McKeown, and W. Fletcher denied the motion in an order filed on Thursday.

BASF claimed it had a right to be heard before the registration for Engenia is terminated and that the court should hear from the company before the impacts of the court’s decision to take away the products’ registration impacts BASF, farmers, and other agriculture companies. 

“The Court should reject Petitioners’ invitation to recall the mandate, rewrite its decision, and reissue the mandate with yet another immediate edict that creates more chaos and disruption of national agriculture,” BASF argued in its motion, referring to the request to cancel the product immediately. 

BASF claimed in its motion that the court does not have jurisdiction over the EPA’s final cancellation order for the products, which allowed their use through the end of July.  The court agreed, rejecting the plaintiffs’ emergency motion to vacate the products immediately. 

Although the court allowed BASF to intervene in the case, the petitioners are still arguing that the companies’ involvement should be limited. By rejecting this motion from BASF the court is showing some reluctance to allow BASF’s complete involvement or consider the judges’ previous ruling to vacate the products again.