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.