United States District Court

For the Northern District of California

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 The Court GRANTS the parties’ requests to file supplemental declarations by Paul

H. Achitoff, John Navazio, and David Berg. The Court GRANTS Defendant-Intervenors’s

request to file the designated portions of the Declarations of Susan Henley Manning, Ph.D.,

Richard J. Sexton, David Berg, Richard Gerstenberger, Duane Grant, Michael Hofer, Russell

Mauch, Michael Petersen, and John Snyder under seal and Plaintiffs’ request to file portions

of their reply brief and Exhibits 50 through 69 to the confidential and supplemental

declarations of Paul H. Achitoff under seal.

Defendant-Intervenors submitted voluminous evidentiary objections. To the extent

the Court relied on evidence objected to in resolving Plaintiffs’ motion, the objections are

overruled. To the extent the Court did not need to consider such evidence in order to resolve

the motion for preliminary injunction, the Court need not rule on the admissibility of such

evidence at this time.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CENTER FOR FOOD SAFETY, et al.

Plaintiffs,

 v.

EDWARD T. SCHAFER, et al.

Defendants. /

No. C 08-00484 JSW

ORDER DENYING PLAINTIFFS’

MOTION FOR A PRELIMINARY

INJUNCTION

Now before the Court is the motion for a preliminary injunction filed by plaintiffs

Center for Food Safety, Organic Seed Alliance, Sierra Club, and High Mowing Organic Seeds

(collectively, “Plaintiffs”). Having considered the parties’ arguments and relevant legal

authority, and having had the benefit of oral argument, the Court hereby DENIES Plaintiffs’

motion for preliminary injunction.1

BACKGROUND

In September 2009, the Court ruled that the decision by the United States Department of

Agriculture (“USDA”) and its Animal and Plant Health Inspection Service (“APHIS”) to

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deregulate a variety of genetically engineered sugar beets without preparing an environmental

impact statement (“EIS”) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-

4335 (“NEPA”). Plaintiffs now move for a preliminary injunction to preclude all further

planting, cultivation, processing, or other use of genetically engineered Roundup Ready sugar

beets or sugar beet seeds, including but not limited to permitting any Roundup Ready sugar beet

seed crop to flower. Plaintiffs’ proposed preliminary injunction would include requiring the

sugar beet seed crop that has already been planted to be pulled up. 

Defendants Edward T. Schafer, in his official capacity as Secretary of the United States

Department of Agriculture, and Cindy Smith, in her official capacity as Administrator of the

Animal and Plant Health Inspection Service (collectively, “Defendants”), and DefendantIntervenors American Sugarbeet Growers Association, Ervin Schlemmer, Mark Wettstein, John

Synder, and Duane Grant, American Crystal Sugar Company, the Amalgamated Sugar

Company, Western Sugar Cooperative, Wyoming Sugar Company, LLC, United States Beet

Sugar Association, Betaseed, Inc., Monsanto Company, Syngenta Seeds, Inc., and

SESVanderHave USA, Inc. (collectively, “Defendant-Intervenors”) all oppose Plaintiffs’

motion.

The Court shall discuss additional facts as necessary in the analysis.

ANALYSIS

A. Legal Standards Applicable to Motion for a Preliminary Injunction.

In order to obtain a preliminary injunction, Plaintiffs “must establish that [they are]

likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in

the public interest.” Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008)

(citations omitted). The Winter court also noted that because injunctive relief is “an

extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” Id. at 375-76 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(per curiam)). Thus “[i]n each case, courts ‘must balance the competing claims of injury and

must consider the effect on each party of the granting or withholding of the requested relief.’” 

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Id. at 376 (citing Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). “‘In exercising

their sound discretion, courts of equity should pay particular regard for the public consequences

in employing the extraordinary remedy of injunction.’” Id. at 376-77 (citing Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312 (1982)).

B. Discussion.

1. Likelihood of Success on the Merits.

Plaintiffs have done more than shown a likelihood of success on the merits. By order

dated September 21, 2009, the Court has already found, on the merits, that Defendants have

violated NEPA by failing to conduct an EIS before deregulating genetically engineered sugar

beets. Therefore, Plaintiffs have already succeeded on the merits.

2. Likelihood of Irreparable Harm.

Upon review of the record currently before the Court, the Court also finds that Plaintiffs

have demonstrated a likelihood of irreparable harm. Defendants and Intervenor-Defendants

expend a great amount of time in an effort to demonstrate that the chances of genetically

engineered sugar beets cross-pollinating with conventional sugar beets, Swiss chard, or table

beets are minuscule, if they exist at all. However, there is evidence in the record to show that

genetically engineered sugar beets may mix with and contaminate Swiss chard, table beets or

conventional sugar beets through mechanical, or other means. Jay Miller, the product manager

of Intervenor-Defendant Betaseed, admits that “[n]o matter how careful a seed producer is,

when the same facility is being used to process and ship both [genetically engineered] and

conventional seed, there is no way to completely prevent conventional seed from being found in

shipments of [genetically engineered] seed, and vice versa.” (Declaration of Jay Miller, ¶ 34.) 

Producers of sugar beet seed, including Betaseed, produce both genetically engineered and

conventional seed. (Id.) 

The Court also finds it significant that genetically engineered sugar beet stecklings were

found in a large pile of compost or potting soil being sold at a nursery in Oregon. (Declaration

of Carol Savonen, ¶¶ 8-14; Declaration of Casper Lehner, ¶¶ 19-20.) Although IntervenorDefendant Betaseed took efforts to retrieve the soil with these stecklings from the nursery and

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 Plaintiffs cite to large exhibits without providing pin cites. The parties are directed

to provide pin cites for all evidence in future filings with the Court.

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from customers who had already purchased it, and have taken precautions to guard against such

an event from occurring again, the fact that it already did happen demonstrates that, based on

human error, genetically engineered sugar beets may not be contained and may contaminate

conventional sugar beets, Swiss chard, or table beets. Moreover, the Court finds it significant

that there have been instances in which genetically engineered corn, cotton, soybean and rice

have mixed with and contaminated the conventional crops. This mixing or contamination

occurred with soybean despite the fact that soybeans are largely self-pollinating. (Declaration

of Doug Gurian-Sherman, ¶¶ 23-29, Exs. 4-7; Declaration of Harvey Howington, ¶¶ 4-14.)2

Therefore, the Court finds that the growth and processing of genetically engineered

sugar beets creates a likelihood that such genetically engineered seeds and plants will mix with,

and thus, contaminate conventional sugar beets, Swiss chard, or table beets. Depending on

when and how they mix, and when the contamination is discovered, the difficulty and length of

time involved in decontaminating the conventional sugar beets, Swiss chard, or table beets

varies greatly. (Supplemental Declaration of John Navazio, Ph.D., ¶¶ 9-20.)

3. Balance of the Equities and the Public Interest.

Despite the Court’s finding regarding the likelihood of harm to the environment, upon

balancing the equities and considering the public’s interest, the Court finds that issuing a

preliminary injunction is not warranted. The Court finds Plaintiffs’ delay in seeking a

preliminary injunction significant. As Judge Breyer noted in Geertson Farms Inc. v. Johanns,

2007 WL 776146, *1 (N.D. Cal. March 12, 2007) (quoting Idaho Watersheds Project v. Hahn,

307 F.3d 815, 833 (9th Cir. 2002)), “[i]n the run of the mill NEPA case, the contemplated

project ... is simply delayed until the NEPA violation is cured.” However, the court in Geertson

Farms found the case was, in some respects, not a typical NEPA case because, in reliance on

the deregulation decision, some growers had already planted genetically engineered alfalfa. Id. 

The court noted that those “plantings [had] occurred because plaintiffs did not seek an

injunction prior to the Court’s ruling on the merits of their claim.” Id. Therefore, the court

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declined to issue an injunction to order the growers to remove the genetically engineered alfalfa

or to prohibit them from harvesting, using, or selling the genetically engineered alfalfa that had

already been planted. Id. On the other hand, the Geertson Farms court noted that the case was

a typical NEPA case with respect to alfalfa growers who had not yet planted the genetically

engineered alfalfa. Id. at *2. Nevertheless, to minimize the harm to the growers who

imminently intended to plant the genetically engineered alfalfa, the court allowed those growers

who intended to plant the genetically engineered alfalfa within the next three weeks who had

already purchased the seed to proceed with the planting. The court merely preliminarily

enjoined those growers who had not yet purchased or did not have imminent plans to grow

genetically engineered alfalfa from switching over from conventional to genetically engineered

alfalfa. Id.

Here, Plaintiffs request this Court to issue a preliminary injunction that is much broader

than the one issued in Geertson Farms and seek to alter the status quo. See Stanley v.

University of Southern Cal., 13 F.3d 1313, 1319 (9th Cir. 1994) (internal quotations omitted) (if

“a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo

pendente lite, courts should be extremely cautious about issuing a preliminary injunction.”). 

Despite the admonition from Judge Breyer in Geertson Farms regarding the impact of the

plaintiffs delay in moving for a preliminary injunction with respect to genetically engineered

alfalfa, Plaintiffs here did not move for a preliminary injunction until five years after genetically

engineered sugar beets were deregulated, three years after this case was filed, and four months

after the Court granted Plaintiffs’ motion for summary judgment on the merits. During the time

in which genetically engineered sugar beets have been deregulated and Plaintiffs did not move

for a preliminary injunction, the industry has overwhelmingly converted to the use of

genetically engineered sugar beets. Ninety-five percent of sugar beets currently being grown

and processed are genetically engineered. Counsel represented at the hearing on the motion for

preliminary injunction that 99.9% of the seed that has been or will be planted this spring has

already been purchased and almost all of the seed has been or will be delivered by the end of

March.

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 Plaintiffs submit evidence regarding the alleged ability of one of these processors to

produce a crop this year using conventional seed. Even if this evidence did demonstrate the

ability of this company to produce a full crop, such evidence would show, at most, that just

one of the eight processing companies could produce a full conventional crop. Notably, it is

one of the two companies that would be least affected by an injunction banning the use of

genetically engineered sugar beets. Relying on the evidence submitted by DefendantIntervenors, this company would be able to produce more than sixty percent of its intended

crop this year using conventional seed. (Manning Decl., Ex. H.)

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If this Court were to ban the planting and processing of the genetically engineered sugar

beet root crop, there would not be enough conventional seed for a full crop this year. 

(Declaration of Susan Henley Manning, Ph.D. (“Manning Decl.”), ¶¶ 15-17, Ex. H.) Although

the degree of the shortage would vary among the eight different sugar beet processors, all but

two of the processors would not be able to produce the vast majority of their intended crop. 

(Id., Ex. H.)3

 The economic impact of such a shortage would be dramatic and wide-spread. 

According to Defendant-Intervenor’s expert, Richard J. Sexton, Ph.D., at least fourteen of the

twenty-one sugar beet plants in the United States would close due to the lack of sugar beets. 

(Declaration of Richard J. Sexton, Ph.D., ¶ 7.) Dr. Sexton projects that this would cause a loss

of approximately 5,800 full-time and seasonal jobs in the rural communities where the sugar

beets are planted and that sugar beet growers would lose approximately $283.6 million in gross

profits if they were precluded from planting the genetically engineered crop. (Id.) Accounting

for multiplier effects, Dr. Sexton estimates that the total economic loss that would be incurred

by the rural communities where sugar beets are grown would be $1.469 billion. (Id.)

The seed growers and technology companies would lose over $180 million. (Declaration of

Bryan Meier, ¶ 35; Declaration of John Enright, ¶ 4; Declaration of Steve Fritz, ¶ 10;

Declaration of Robert D. Nixon (Docket No. 29), ¶ 14.) Moreover, an injunction which would

ban the planting and processing of genetically engineered sugar beets in 2010 would have a

large detrimental impact on the United States’ domestic sugar supply and price. (Declaration of

Scott K. Gregory, ¶ 5.)

The Court finds that Plaintiffs’ delay in filing this suit and, in particular, in moving for a

preliminary injunction, weighs in favor of denying a preliminary injunction. “Laches is not a

favored defense in environmental cases.” Coalition for Canyon Preservation v. Bowers, 632

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F.2d 774, 779 (9th Cir. 1980). Nevertheless, “[a]lthough a particular period of delay may not

rise to the level of laches and thereby bar a permanent injunction, it may still indicate an

absence of the kind of irreparable harm required to support a preliminary injunction.” Quince

Orchard Valley Citizens Association, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (quoting

Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985)) (denying preliminary injunction in 

environmental case based on the plaintiffs’ delay and noting that the costly impacts of an

injunction could have been obviated if the plaintiffs had diligently brought suit); see also

Headwaters, Inc. v. Bureau of Land Management, Medford Dist., 665 F. Supp. 873, 876 (D.Or.

1987) (declining to bar suit for laches in an environmental case, but denying preliminary

injunction based on plaintiff’s delay in bringing suit: “[Defendant]’s hardship would have been

largely avoided had plaintiff acted promptly.”).

In light of the dramatic economic impact a mandatory injunction altering the status quo

would have, and considering Plaintiffs’ long delay, the Court finds that upon balancing the

equities and considering the public’s interest, issuing the type of preliminary injunction sought

by Plaintiffs is not warranted. The Court notes that the costly impacts from such an injunction

could have been obviated if Plaintiffs had diligently brought suit and moved for a preliminary

injunction earlier. Moreover, in contrast to the genetically engineered alfalfa crop at issue in

Geertson Farms, the use of which was estimated to expand by five times within the next year,

Defendant-Intervenors represented at the hearing that there are no plans to expand the use of

genetically engineered sugar beets beyond the current ninety-five percent. Therefore, a

prohibitory preliminary injunction, similar to the one issued in Geertson Farms, would not

provide much, if any, benefit here. Accordingly, the Court DENIES Plaintiffs’ motion for a

preliminary injunction.

The parties should not assume that the Court’s decision to deny a preliminary injunction

is indicative of its views on a permanent injunction pending the full environmental review that

APHIS is required to conduct. Rather, while the environmental review is pending, the Court is

inclined to order the Intervenor-Defendants to take all efforts, going forward, to use

conventional seed. In light of Plaintiffs’ showing of irreparable harm to the environment, the

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Court is troubled by maintaining the status quo that consists of ninety-five percent of sugar

beets being genetically engineered while APHIS conducts the environmental review that should

have occurred before the sugar beets were deregulated. Moreover, the length of time that is

necessary to conduct the full environmental review, as compared to the several months between

the preliminary and permanent injunction hearing, could increase the likelihood and potential

amount of irreparable harm to the environment. In addition, the absence of an imminent

planting season and the ability to have to time adjust back to conventional sugar beets could

help alleviate any harm to Defendant-Intervenors from an injunction. Finally, the Court notes

that Plaintiffs’ delay, if it does not warrant the application of laches, would have less weight in

consideration of a permanent injunction. Thus, the balance of the equities may likely shift when

the Court considers whether to issue permanent injunction. 

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for preliminary

injunction.

IT IS SO ORDERED.

Dated: March 16, 2010 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

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