                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

___________________________________
                                   )
RANDY HARDIN AND                   )
VERNON BLASINGAME                  )
                                   )
               Plaintiffs,         )
     v.                            )
                                   )
                                   )Civ. Action No. 04-1299 (EGS)
                                   )
LISA JACKSON, ADMINISTRATOR,       )
UNITED STATES ENVIRONMENTAL        )
PROTECTION AGENCY,1                )
                                   )
               Defendant,          )
                                   )
     and                           )
                                   )
BASF CORPORATION,                  )
                                   )
               Defendant-Intervenor)
___________________________________)

                         MEMORANDUM OPINION

     Before the Court is a Motion for Leave to Intervene in the

above-captioned case by BASF Corporation (“BASF”).     This case

involves the challenge to the registration of products regulated

by the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. §§ 136-136y.    Plaintiffs ask the Court to

invalidate these registrations.    BASF is the principal

registrant, data submitter, owner, and manufacturer of the

products which plaintiffs seek to invalidate.      BASF argues that



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        By operation of Federal Rule of Civil Procedure 25(d)(1),
EPA Administrator Lisa Jackson is automatically substituted as
the proper party in place of former EPA Administrator Michael
Leavitt.
they will suffer immediate and severe economic loss from the

invalidation of these registrations.   Plaintiffs oppose BASF’s

motion; defendant does not oppose the motion.    After careful

consideration of BASF’s motion, plaintiff’s opposition, BASF’s

reply, and applicable case law, this Court GRANTS BASF’s Motion

to Intervene and the Motion to Supplement the Administrative

Record.



I.   BACKGROUND

     On August 3, 2004, plaintiffs, produce farmers who live in

Arkansas, filed a Complaint with this Court alleging that BASF’s

registrations for Facet® 50 WP, Facet® 75 DF, and Facet® GR

(collectively, “Facet”) are not in compliance with FIFRA.

Seeking declaratory and other relief, plaintiffs asked the Court

to invalidate these registrations.   BASF applied for these

registrations, submitted the data in support of them, and worked

with the United States Environmental Protection Agency (“EPA”) to

secure and maintain the registrations.

     On July 27, 2005, this Court stayed the action to permit the

EPA to conduct administrative proceedings on plaintiffs’ Petition

to Revoke, which had been filed shortly before the Complaint in

this case was filed.   The Court returned the matter to its

calendar on January 15, 2008, and ordered the EPA to prepare to

file its Answer and the Administrative Record.    The parties were


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also ordered to negotiate and submit fact stipulations and a

proposed briefing schedule for dispositive motions.

      On March 16, 2008, this Court approved the parties’ proposed

joint briefing schedule; the briefing schedule was amended on May

8, 2008.   Stipulations of facts and exhibits by the parties were

submitted to the Court on July 10, 2008, and the plaintiffs

submitted a Motion for Partial Summary Judgment on August 1,

2008.   On September 5, 2008, defendant filed its opposition to

plaintiffs’ Motion for Partial Summary Judgment and a Cross-

Motion for Summary Judgment.   On September 5, 2008, BASF filed

its Motion to Intervene.   Plaintiffs timely filed an objection to

BASF’s motion; defendant does not oppose intervention.       BASF also

filed an Answer, a Motion to Supplement the Administrative

Record, a Motion to Strike Stipulations 6 and 8, and a Motion to

Dismiss, or in the Alternative for Summary Judgement.        BASF asks

the Court to consider the Answer and the other motions filed as

of date of this Order.



II.   DISCUSSION

      Plaintiffs argue that BASF’s motion is untimely and that

BASF’s interests are adequately represented by the EPA.       BASF

contends that until the parties filed their fact stipulations and

dispositive motion, BASF had every reason to believe that EPA

would represent their interests.       After reviewing the


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stipulations and pleadings, only then did BASF conclude that they

were adverse to BASF's interests.      Up until then, they argue,

they believed that their interests were being adequately

represented by EPA.

     As a threshold matter, BASF must show that it has Article

III standing to participate in this litigation.      See Military

Toxics Project v. EPA, 146 F.3d 948, 953 (D.C. Cir. 1998) (citing

City of Cleveland v. Nuclear Regulatory Comm’n, 17 F.3d 1515,

1516-18 (D.C. Cir. 1994)).   This is not a high hurdle for BASF to

clear.   “In many if not most cases the petitioner's standing to

seek review of administrative action is self-evident.”      Sierra

Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002).      “In

particular, if the complainant is ‘an object of the action (or

forgone action) at issue’ . . . there should be ‘little question

that the action or inaction has caused him injury, and that a

judgment preventing or requiring the action will redress it.’”

Id. at 900 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

561-62 (1992)).   BASF’s registrations for its pesticides are the

subject of this suit, and if plaintiffs are granted the relief

they seek, BASF will be injured.

     A Motion to Intervene is governed by Federal Rule of Civil

Procedure 24.   BASF’s motion relies on both permissive

intervention and intervention as of right.      See Fed. R. Civ. P.

24(a) & (b).    This Court finds that BASF is entitled to intervene


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as of right; permissive intervention, therefore, need not be

addressed by this Court.   See Fund for Animals v. Norton, 322

F.3d 728, 731 (D.C. Cir. 2003) (citing Foster v. Gueory, 655 F.2d

1319, 1323-24 (D.C. Cir. 1981)).       Rule 24(a)(2) states in

relevant part:

          On timely motion, the court must permit
          anyone to intervene who . . . claims an
          interest relating to the property or
          transaction that is the subject of the
          action, and is so situated that disposing of
          the action may as a practical matter impair
          or impede the movant's ability to protect its
          interest, unless existing parties adequately
          represent that interest.

Fed. R. Civ. P. 24(a).

     The party seeking intervention as of right must meet four

conditions: (1) the motion must be timely; (2) the party must

claim “‘an interest relating to the property or transaction which

is the subject of the action’”; (3) the party must be “‘so

situated that the disposition of the action may as a practical

matter impair or impede the applicant's ability to protect that

interest’”; and (4) the party must show that their interest may

not be “adequately represented by existing parties.’”       Fund for

Animals, 322 F.3d at 731 (quoting Mova Pharm Corp. v. Shalala,

140 F.3d 1060, 1074 (D.C. Cir. 1998)).

     Plaintiffs only challenge the timeliness of the motion and

whether BASF’s interests are adequately represented by EPA.      This

Court, therefore, need not consider the second and third


                                   5
conditions under Rule 24(a)(2).



     A.   Timeliness

     Plaintiffs argue that BASF’s motion is not timely because

BASF knew as far back as 2004 that its interests would be

affected if plaintiffs were successful in this litigation.

Timeliness is to be determined by looking at all of the

circumstances relevant to the case and the motion.     See NAACP v.

New York, 413 U.S. 345, 366 (1973).   A review of the procedural

posture of this case demonstrates that BASF’s motion is timely.

     This case was filed in 2004, and after initial filings and

discussions by the parties, the case was stayed for two years.

This Court lifted the stay on January 15, 2008.   The parties then

entered the Stipulation of Facts and Exhibits on July 10, 2008.

Plaintiffs’ filed their Motion for Partial Summary Judgment on

August 1, 2008.   The Court has not issued any decisions or the

merits of the claim, and no discovery has or will occur in this

case, as it is based on the administrative record.   BASF filed

its Motion to Intervene after discovering that three of the

stipulations that the parties entered were adverse to its

interests.   In viewing all of the relevant circumstances of this

case, this Court finds that BASF’s motion is timely.



     B.   Adequate Representation of Interests


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     Even if a motion is timely, the Court may deny a motion to

intervene if the moving party’s interests are adequately

represented by an existing party.      BASF specifically claims that

the reason it moved to intervene is that it felt that the EPA was

not adequately representing its interests.     A showing that

existing representation is inadequate “is not onerous.”        Dimond

v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986).

“The applicant need only show that representation of his interest

‘may be’ inadequate, not that representation will in fact be

inadequate.”     Id. (citations omitted).   “[P]etitioner[s]

ordinarily should be allowed to intervene unless it is clear that

the [existing] party will provide adequate representation for the

absentee.”     United States v. Amer. Tel. & Tel. Co., 642 F.2d

1285, 1293 (D.C. Cir. 1980) (internal quotation marks and

citation omitted).    The EPA does not oppose intervention, and the

D.C. Circuit has repeatedly held that private companies can

intervene on the side the government, even if some of their

interests converge.     See Fund for Animals, 322 F.3d at 736; NRDC

v. Costle, 561 F.2d 904, 912-13 (D.C. Cir. 1977).     BASF seeks to

intervene to protect its economic and propriety interests as the

owner of Facet registrations.    The D.C. Circuit has frequently

found “inadequacy of governmental representation” when the

government has no financial stake in the outcome of the suit.

Dimond, 792 F.2d at 192; see also Fund for Animals, 322 F.3d at


                                   7
736; NRDC, 561 F.2d at 912, n.41; Nuesse v. Camp, 385 F.2d 694,

702-04 (D.C. Cir. 1967).    Furthermore, BASF specifically

challenges three of the stipulations entered by plaintiffs and

EPA.    As a result, BASF has offered additional pieces from the

administrative record that it believes support its Facet

registrations.    BASF’s has also submitted as motion for summary

judgment – which will now be accepted by this Court as a result

of the disposition of this motion – which takes a different and

much broader approach to the defense of the Facet registration

process.



III.    CONCLUSION

       BASF’s Motion for Leave to Intervene is GRANTED; BASF is

hereby added as Defendant-Intervenor to the above-caption case.

BASF’s Motion to Supplement the Administrative Record is also

GRANTED.     BASF’s Answer, its Motions to Supplement the

Administrative Record, to Strike Stipulations 6 and 7, and to

Dismiss, or in the Alternative, for Summary Judgment, are deemed

filed as of the date of this Order.    An appropriate Order

accompanies this Memorandum Opinion.




Signed:     Emmet G. Sullivan
            United States District Court Judge
            March 3, 2009


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