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Friends of Animals v. United States Environmental Protection Agency

United States District Court, D. Oregon, Pendleton Division

January 26, 2018

FRIENDS OF ANIMALS, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and SCOTT PRUITT, in his official capacity as the Administrator the U.S. Environmental Protection Agency, Defendants, and THE HUMANE SOCIETY OF THE UNITED STATES, Proposed Defendant-Intervenor.

          OPINION AND ORDER

          PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Friends of Animals brings this action to challenge the refusal of defendants the Environmental Protection Agency (“EPA”) and Scott Pruitt (“federal defendants”) to initiate a Special Review of the pesticide ZonaStat-H. Compl. (Docket No. 1). The Humane Society of the United States (“HSUS”) moves to intervene as a defendant. (Docket No. 17). Defendants do not oppose intervention. Id., at 2. Plaintiff concedes that HSUS “likely” meets the requirements for intervention as of right, but seeks to impose certain conditions on HSUS's participation as defendant-intervenor. Pl. Resp., at 2 (Docket No. 22). The Court heard oral argument on HSUS's Motion on January 22, 2018. (Docket No. 26). For the following reasons, the Court GRANTS HSUS's Motion to Intervene, subject to the conditions provided herein.

         BACKGROUND

         I. ZonaStat-H and PZP

         This action concerns the pesticide ZonaStat-H, whose primary ingredient is porcine zona pellucida (“PZP”). Compl. ¶ 2. PZP is used for population control of female wild horses and burros. Id. ¶ 3. On January 30, 2012, the EPA issued Registration No. 86833-1 for ZonaStat-H, pursuant to Section 3(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). 7 U.S.C. § 136a(c)(5); Compl. ¶ 2. Plaintiff alleges that, following the EPA's granting of the registration, published research revealed previously undisclosed harmful effects of PZP on wild horses. Id. ¶ 4.

         On May 19, 2015, plaintiff submitted a petition pursuant to Section 6(b) of FIFRA, 7 U.S.C. § 136d(b), requesting that the EPA conduct a Special Review to consider new evidence regarding the effects of PZP and to determine whether it would be appropriate to cancel or revise the registration of ZonaStat-H. Compl. ¶ 5. On December 15, 2016, the EPA denied the petition for Special Review. Id. ¶ 6. Plaintiff challenges the denial of the petition for Special Review as arbitrary and capricious under the Administrative Procedure Act (“APA”). 5 U.S.C. § 551 et seq.

         II. The Humane Society of the United States

         HSUS works for the protection of animals through advocacy, education, and direct animal care; its primary mission is to prevent cruelty to and neglect of animals. HSUS Mot. Intervene, at 5 (Docket No. 17). HSUS advocates for protection of wild horses and burros, and supports immunocontraception as a humane means of managing wild and domestic animal populations. Id., at 6. HSUS promotes PZP as a population management tool for wild horses and burros. Id. On September 16, 2009, HSUS submitted the application for first registration of ZonaStat-H. Compl. ¶ 43. HSUS moves to intervene, specifically to protect its interest as the registrant of ZonaStat-H.

         III. Dispute over Conditions on Intervention

         Plaintiff agreed not to oppose HSUS' Motion for Intervention, contingent on HSUS agreeing to four conditions for intervention:

(1) Defendant-Intervenor-Applicant will not seek discovery in this proceeding unless Plaintiff or Federal Defendant initiates discovery[;]
(2) Defendant-Intervenor-Applicant will not seek to supplement the administrative record on the merits of Plaintiff's claims[;]
(3) Defendant-Intervenor-Applicant will not assert claims against Plaintiff or Federal Defendant in this proceeding; and
(4) Defendant-Intervenor-Applicant will confine their arguments to the issues raised in Plaintiff's complaint and ...

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