FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHEMICAL PRODUCERS AND 

DISTRIBUTORS ASSOCIATION,

Plaintiff-Appellant,

v.

PAUL E. HELLIKER, Director of the

California Department of Pesticide

No. 04-56318 Regulation,

Defendant-Appellee, D.C. No. 

and CV-02-09781-AHM

OPINION SYNGENTA CROP PROTECTION, INC.;

DOW AGROSCIENCES LLC; BASF

CORPORATION; BAYER CROPSCIENCE

LP; DU PONT DE NEMOURS AND

COMPANY; MONSANTO COMPANY,

Defendants-IntervenorsAppellees. 

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

May 4, 2006—Pasadena, California

Filed August 31, 2006

Before: Michael Daly Hawkins and Richard A. Paez,

Circuit Judges, and Neil V. Wake,* District Judge.

*The Honorable Neil V. Wake, United States District Judge for the District of Arizona, sitting by designation. 

10615
Opinion by Judge Wake

10616 CHEMICAL PRODUCERS v. SYNGENTA CROP
COUNSEL

David H. Bamberger, DLA Piper Rudnick Gray Cary US

LLP, Washington, D.C., for the plaintiff-appellant. 

Stanley W. Landfair and Lawrence S. Ebner, McKenna Long

& Aldridge LLP, Los Angeles, California, for the defendantsintervenors-appellees. 

10618 CHEMICAL PRODUCERS v. SYNGENTA CROP
OPINION

WAKE, District Judge: 

We must decide whether intervening amendments to California’s pesticide registration laws, which were challenged

and upheld below, render this appeal moot. We hold they do.

Because the amendments cannot be attributed to the voluntary

conduct of the party seeking relief from the judgment, we

vacate the district court’s judgment. 

I. Federal and California Pesticide Regulation 

Under the Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. §§ 136 to 136y (“FIFRA”), all pesticides must

be registered with the Environmental Protection Agency

before being sold or distributed. 7 U.S.C. § 136a(a). Pesticides also must be registered with California’s Department of

Pesticide Regulation (“the Department”) to be sold in California. Cal. Food & Agric. Code § 12811 (Deering 2006). Both

the California and federal registration laws require prospective sellers to submit with their registration applications

extensive data on the health and environmental effects of their

pesticides. Because the testing required to produce such data

is costly, applicants seeking to register pesticides with the

same active ingredients as previously registered pesticides

have incentive to acquire and use data submitted by prior registrants. 

FIFRA’s rules relating to re-use of data by secondary registration applicants fall into time periods beginning on the date

the data were originally submitted. Original registrants are

entitled to exclusive control over the data submitted with their

application for ten years following their registration. 7 U.S.C.

§ 136a(c)(1)(F)(i). During the ten-year period, secondary registrants may use such data only if they obtain written consent

from the original registrant, i.e., a “letter of authorization.”

The exclusive control afforded to original registrants during

CHEMICAL PRODUCERS v. SYNGENTA CROP 10619
this period allows them to deny use of their data to others or

to set their own prices for letters of authorization. After this

ten-year period is a five-year “mandatory data-licensing”

period. During the five years, secondary applicants may rely

on previously filed data without permission from the original

submitter but “only if the applicant has made an offer to compensate the original data submitter and submitted such offer

to the Administrator [of the Environmental Protection

Agency] accompanied by evidence of delivery to the original

data submitter of the offer.” Id. at 136a(c)(1)(F)(iii). If the

original data submitter deems the offer unsatisfactory, the

amount of compensation is fixed through binding arbitration.

Id. Arbitrated pricing during this mandatory-licensing period

replaces the original submitter’s previous power unilaterally

to dictate the price secondary applicants must pay to use the

data. Disagreement between the original submitter and a new

applicant, moreover, will not delay the new applicant’s registration. Id. After expiration of the five-year mandatory datalicensing period, the data become freely available for use by

secondary applicants. Id. at 136a(c)(1)(F)(iv). 

When this case began, California required secondary applicants to obtain letters of authorization from original data submitters when federal law did not. While federal law provides

only a ten-year period of exclusive use to original submitters,

California law granted them exclusive use in perpetuity. Cal.

Food & Agric. Code § 12811.5 (Deering 2004). Before its

amendment, section 12811.5 read:

Except as provided in Section 13128, data, other

than public literature, previously submitted to the

director or the Administrator of the United States

Environmental Protection Agency to support an

application for the original registration of a pesticide,

or to support an application for an amendment

adding any new use to that registration and that pertains solely to that use, shall not, without the written

permission of the original data submitter, or its

10620 CHEMICAL PRODUCERS v. SYNGENTA CROP
assigns or successors in interest, be considered by

the director to support an application by another

person. 

Id. (emphasis added); see also Cal. Code Regs. tit. 3,

§ 6170(c) (Barclay 2004). Thus, in California a secondary

applicant could never use previously submitted data without

permission from the original submitter, who could hold out

for any price or refuse authorization altogether. 

Chemical Producers and Distributors Association (“the

Association”), a trade organization of manufacturers and sellers of generic pesticides, brought this action against Paul Helliker, Director of the Department, challenging California’s

longer exclusive use period. The complaint sought an injunction and a declaration that the California statute was preempted “to the extent that [it] purport[s] to grant data

submitters in California exclusive use rights to data that were

previously submitted to EPA and are subject to FIFRA’s mandatory data-licensing scheme.” 

The Director declined to defend the law he was charged

with enforcing. However, Syngenta Crop Protection, Inc.,

Dow Agrosciences L.L.C., B.A.S.F. Corporation, Bayer

Cropscience L.P., E.I. Du Pont De Nemours and Company,

and Monsanto Company (“Intervenors”) intervened as defendants in support of the California statute and regulations. The

district court granted summary judgment for the Intervenors

and the Director, finding the state statute and regulations not

preempted. Chem. Producers & Distrib. Ass’n v. Helliker,

319 F. Supp. 2d 1116 (C.D. Cal. 2004). The Association

appealed. 

While the appeal was pending, California enacted amendments to its pesticide registration law, effective January 1,

2006. The amended statute eliminates any state law period of

exclusive use by the original data submitter. Instead, California now allows mandatory data-licensing at arbitrated prices

CHEMICAL PRODUCERS v. SYNGENTA CROP 10621
from the outset for secondary users, although a new applicant

may obtain a letter of authorization if the original data submitter is willing. Alternatively, a new applicant may (1) formulate or obtain its product from a source that has data

authorization from the data owner or (2) formulate or obtain

its product from a source that has irrevocably offered to pay

the data owner a share of the cost of producing the data. Cal.

Food & Agric. Code §§ 12811.5(a) & (c) (Deering 2006).

Like FIFRA, the new law provides for arbitration where an

irrevocable offer to pay is made but price is not agreed upon,

and a secondary applicant’s registration will not be delayed

by the dispute. Id. at § 12811.5(d). As in FIFRA, data may be

used by secondary registrants without compensation to the

original submitter after a certain period. Id. at § 12811.5(a).

In FIFRA that period is fifteen years, and under the amended

California law it is fifteen years for data submitted after

August 1, 2005, and seventeen years for data submitted before

that date. Id. at § 12811.5(a)(3). 

In summary, although the new California law does not replicate FIFRA’s first ten-year period of original submitters’

exclusive entitlement to their data, original submitters still

have that exclusivity, even in California, by force of FIFRA’s

terms. The former California law’s extension of the exclusive

use period beyond FIFRA’s ten years is abolished. In no circumstance does the California law now give original submitters exclusive right to their data for California registration

purposes when FIFRA subjects those data to mandatory

licensing at arbitrated prices. 

In light of the amendments, the Association suggests its

appeal is moot and moves for vacatur of the lower court’s

judgment. Intervenors contest both mootness and vacatur.

II. Mootness 

[1] “Where intervening legislation has settled a controversy

involving only injunctive or declaratory relief, the controversy

10622 CHEMICAL PRODUCERS v. SYNGENTA CROP
has become moot.” Bunker Ltd. P’ship v. United States, 820

F.2d 308, 311 (9th Cir. 1987) (citations omitted). Here the

Association sought only injunctive and declaratory relief. We

therefore must decide whether California’s amended statute

has settled the Association’s controversy. 

A. Statutory Amendment as Settling the Controversy

[2] The test for whether intervening legislation has settled

a controversy involving only declaratory or injunctive relief

is “whether the new [law] is sufficiently similar to the

repealed [law] that it is permissible to say that the [government’s] challenged conduct continues.” Ne. Fla. Chapter of

Associated Gen. Contractors of Am. v. City of Jacksonville,

508 U.S. 656, 662 n.3 (1993) (citations omitted). Where the

law has been “sufficiently altered so as to present a substantially different controversy from the one the District Court

originally decided,” there is “no basis for concluding that the

challenged conduct [is] being repeated.” Id. (citations and

internal quotation marks omitted). 

[3] In evaluating whether the government’s challenged conduct continues, the case or controversy giving rise to jurisdiction is the touchstone. See id. at 662; Diffenderfer v. Cent.

Baptist Church of Miami, Inc., 404 U.S. 412, 414 (1972);

Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813, 815 (9th Cir.

1995). In Northeastern Florida, for example, a trade association representing mostly non-minority construction firms

sought an injunction and declaration that the city’s set-aside

program for minority businesses was unconstitutional. 508

U.S. at 658-59. Intervening amendments to the program did

not render the case moot:

The gravamen of petitioner’s complaint is that its

members are disadvantaged in their efforts to obtain

city contracts. The new ordinance may disadvantage

them to a lesser degree than the old one, but insofar

as it accords preferential treatment to black- and

CHEMICAL PRODUCERS v. SYNGENTA CROP 10623
female-owned contractors — and, in particular, insofar as its “Sheltered Market Plan” is a “set aside” by

another name — it disadvantages them in the same

fundamental way. 

Id. at 662 (footnote omitted). 

The same inquiry yielded the opposite answer in Diffenderfer. 404 U.S. at 415. There the plaintiffs sought a declaratory

judgment striking down Florida’s tax exemption for church

property used primarily for commercial purposes. Id. at 412-

13. Although the trial court upheld the law, Florida amended

it while the case was on appeal. The new version exempted

church property from taxation “only if the property is used

predominantly for religious purposes and only to the extent of

the ratio that such predominant use bears to the non-exempt

use.” Id. at 413-14 (citations and internal quotation marks

omitted). The “crux” of plaintiff’s complaint was the unconstitutionality of “state aid in the form of a tax exemption for

church property used primarily for commercial purposes.” Id.

at 413. The case was mooted because the church parking lot

that was the “subject of the . . . complaint” was no longer

exempt beyond the extent of its church use. Id. at 414-15. 

[4] Here the case or controversy the Association posed was

that its member-companies were “directly and adversely

affected by the letter of authorization requirement” in their

attempts to register generic pesticides in California. The

Association’s grievance over the letter of authorization

requirement in the former section 12811.5, which effectuated

exclusive use rights for original submitters in perpetuity, was

the “crux,” the “gravamen,” and indeed the only grievance, of

the complaint. The new statute has resolved that grievance.

The member-companies of the Association are no longer

affected by the letter of authorization requirement in the way

contested by the Association. Although a letter of authorization remains one avenue for generic pesticide companies to

secure the use of previously filed data, it is only an alternative

10624 CHEMICAL PRODUCERS v. SYNGENTA CROP
to other avenues, including mandatory licensing at arbitrated

prices. The new statute accords letters of authorization a role

no larger than they play in FIFRA, which is everything the

Association hoped to achieve by this action.1

[5] Intervenors’ search for life in this case looks to a savings clause in the new section 12811.5 concerning future

adjudications of the lawfulness of existing registrations. That

provision, subdivision 12811.5(j), states: “No cost sharing as

provided in subdivisions (a), (b), and (c) shall be required to

support an application for annual renewal of pesticide product

registration, provided this provision shall not authorize

renewal of a product registered prior to the effective date of

this section if that registration is declared to have been unlawfully issued by a court of competent jurisdiction.” The “cost

sharing” of subdivisions (a), (b), and (c) refers to the mandatory data licensing and compensation. Some registrations previously granted have been challenged in the state courts. See,

e.g., Syngenta Crop Prot., Inc. v. Helliker, 138 Cal. App. 4th

1135, 42 Cal. Rptr. 3d 191 (2006). 

[6] Subdivision (j) plainly seeks to avoid inadvertently

redeeming registrations that were invalid when granted and

are so adjudicated in the future. Subdivision (j) states explicitly what the amendment as a whole would mean even without

subdivision (j): that the validity of prior registrations turns on

the law at the time and is not affected by the January 1, 2006

amendment. 

1The mandatory licensing terms of the new California statute differ

from those of FIFRA in one limited respect. For some data, the new California law entitles original submitters to compensation at arbitrated prices

for two years longer than FIFRA. See Cal. Food & Agric. Code

§ 12811.5(a)(3) (Deering 2006). Intervenors rightly do not contend that

this difference affects mootness, for it is not relevant to the Association’s

sole challenge to the former California law’s grant of exclusive rights longer than those provided in FIFRA. 

CHEMICAL PRODUCERS v. SYNGENTA CROP 10625
Intervenors argue that litigation of old registrations as contemplated by subdivision (j) may occasion a decision on the

preemptive effect of FIFRA on the old statute. However,

Intervenors point to no litigation or actual controversy posing

that issue and do not sufficiently explain how FIFRA preemption of the former California statute would arise in litigation

over registrations that should not have been issued. 

[7] In any event, any disputes regarding the unlawfulness

of registrations already issued are beyond the complaint in

this case. The Association’s sole challenge here is that FIFRA

preempts California’s former grant of exclusive use rights to

original submitters beyond the period such rights are provided

by FIFRA. This case involves no registration actually

obtained. Intervenors’ bare assertion that such litigation could

reach the issue decided below in this case is speculative and

falls far short of sustaining a case or controversy here. See

Hall v. Beals, 396 U.S. 45, 49-50 (1969) (holding that “speculative contingencies afford no basis for our passing on the

substantive issues the appellants would have us decide with

respect to the now-amended law of Colorado” (citations omitted)); Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994)

(“[N]either we, nor the Supreme Court, have ever allowed

plaintiffs to challenge a statute unless the plaintiffs had an

actual and well founded fear that the law will be enforced

against them.” (citations and internal quotation marks omitted)).

B. Statutory Amendment as Voluntary Cessation 

[8] Intervenors argue, the statutory amendment notwithstanding, that the voluntary cessation exception to mootness

applies. Under that doctrine, a “defendant’s voluntary cessation of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice.” City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982);

accord Ne. Florida, 508 U.S. at 661-62. If it were otherwise,

“the defendant’s mere voluntary cessation would compel the

10626 CHEMICAL PRODUCERS v. SYNGENTA CROP
courts to leave the defendant free to return to his old ways.”

Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1194 (9th

Cir. 2000) (citations, alterations and internal quotation marks

omitted); accord City of Mesquite, 455 U.S. at 289 n.10. 

Intervenors draw comfort from general language in some of

our cases. “Our circuit, perhaps following the lead of the

Supreme Court, has issued somewhat confused pronouncements regarding mootness generally, and mootness in the context of repealed or amended statutes in particular.” Jacobus v.

Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003). As we noted in

Jacobus, sometimes we have said that “if a challenged law is

repealed or expires, the case becomes moot,” id. (citing Smith,

233 F.3d at 1195, Native Vill. of Noatak v. Blatchford, 38

F.3d 1505, 1510 (9th Cir. 1994), and Barilla v. Ervin, 886

F.2d 1514, 1521 (9th Cir. 1989), overruled on other grounds

by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th

Cir. 1996)), and at other times we have said that repeal or

amendment “does not deprive a federal court of its power to

determine the legality of the practice.” 338 F.3d at 1103 (citing Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th

Cir. 1985), and City of Mesquite, 455 U.S. at 289) (internal

quotation marks omitted). 

The confusion in our pronouncements diminishes if our

cases are examined on their facts. The cases we cited in Jacobus for a near categorical rule of mootness are cases of statutory amendment. The examples we cited of continuing federal

adjudicatory power are of local government or administrative

agency repeal or amendment. Some of our pronouncements

were in cases that were not moot. E.g., Jacobus, 338 F.3d at

1104; Carreras, 768 F.2d at 1047; see also City of Mesquite,

455 U.S. at 289 & n. 11 (amending authority announced its

intention to reenact); Coral Constr. Co. v. King County, 941

F.2d 910, 927 (9th Cir. 1991) (remanded to determine

whether amended ordinance mooted the case). 

[9] The voluntary cessation doctrine comes into play in

diverse circumstances, so sometimes our pronouncements

CHEMICAL PRODUCERS v. SYNGENTA CROP 10627
have been general. Nevertheless, we have been clear in refining the voluntary cessation exception for state legislative

enactments that otherwise moot a controversy. In that circumstance the exception is narrow:

A statutory change . . . is usually enough to render

a case moot, even if the legislature possesses the

power to reenact the statute after the lawsuit is dismissed. As a general rule, if a challenged law is

repealed or expires, the case becomes moot. The

exceptions to this general line of holdings are rare

and typically involve situations where it is virtually

certain that the repealed law will be reenacted.

Native Vill. of Noatak, 38 F.3d at 1510 (emphasis added; citations omitted); accord Smith, 233 F.3d at 1195; see also Barilla, 886 F.2d at 1521 (rejecting appellant’s voluntary

cessation argument where there was no indication that the

state legislature intended to repeal the statutory amendments).

[10] This is not one of those rare cases in which it is “virtually certain that the repealed law will be reenacted.” Village

of Noatak, 38 F.3d at 1510. Indeed, there is no reason to think

the California legislature enacted the amendment with a mind

to restoring the old law later. Nor is there any reason to think

the Association would seek its own harm by asking the legislature to do so. 

[11] Because the statutory amendment has settled this controversy, this case is moot. 

III. Vacatur 

[12] In deciding whether to vacate a moot judgment, “the

principal condition to which we have looked is whether the

party seeking relief from the judgment below caused the

mootness by voluntary action.” U.S. Bancorp Mortgage Co.

v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994) (citations omit10628 CHEMICAL PRODUCERS v. SYNGENTA CROP
ted). In this circuit, causation of mootness is a threshold question. Where mootness was caused by “voluntary action” of the

party seeking vacatur, “we generally remand with instructions

to the district court to weigh the equities and determine

whether it should vacate its own judgment.” Mayfield v. Dalton, 109 F.3d 1423, 1427 (9th Cir. 1997); accord Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996); Dilley v.

Gunn, 64 F.3d 1365, 1370-71 (9th Cir. 1995). Where mootness was caused not by the “voluntary action” of the party

seeking vacatur but by “happenstance” or the “vagaries of circumstance,” we direct vacatur. Doe v. Madison Sch. Dist. No.

321, 177 F.3d 789, 799 (9th Cir. 1999) (en banc); see also

Pub. Utils. Comm’n v. FERC, 100 F.3d 1451, 1460-61 (9th

Cir. 1996); Mayfield, 109 F.3d at 1427. When we cannot by

resort to the factual record determine whether mootness was

caused by the voluntary action of the party seeking vacatur,

this threshold question too is left to the district court. See Dilley, 64 F.3d at 1371. 

Intervenors argue that the Association’s advocacy before

the California Legislature voluntarily mooted this case, thus

precluding vacatur by this court. The Association sent letters

to every member of the Senate Committee on Environmental

Quality and the Assembly Committee on Agriculture urging

passage of the bill that would eliminate the letter of authorization requirement. An Association delegation also discussed

the issue with the Assembly. 

[13] Lobbying Congress or a state legislature cannot be

viewed as “causing” subsequent legislation for purposes of

the vacatur inquiry. Attributing the actions of a legislature to

third parties rather than to the legislature itself is of dubious

legitimacy, and the cases uniformly decline to do so. Even

where new legislation moots the executive branch’s appeal of

an adverse judgment, the new legislation is not attributed to

the executive branch. See Khodara Envtl., Inc. ex rel Eagle

Envtl., L.P. v. Beckman, 237 F.3d 186, 194-95 (3d Cir. 2001)

(stating that the U.S. Bancorp presumption against vacatur

CHEMICAL PRODUCERS v. SYNGENTA CROP 10629
applies “when mootness results from the voluntary action of

the party seeking relief from the judgment below,” but declining to apply the presumption where a federal agency’s appeal

was mooted by congressional action); Valero Terrestrial

Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (“In this

case, the mootness was, as noted, caused by the state legislature’s amendment of statutory provisions that it had earlier

enacted, and not by the actions of the defendants before this

court, all of whom are state executive officials, none of whom

is the Governor. Therefore, defendant state executive officials

are in a position akin to a party who finds its case mooted by

‘happenstance,’ rather than events within its control.” (citations, alterations and internal quotation marks omitted)); Nat’l

Black Police Ass’n v. District of Columbia, 108 F.3d 346,

351-52 (D.C. Cir. 1997) (vacating judgment when the District

of Columbia’s appeal was mooted by the District of Columbia’s legislative action); Am. Library Ass’n v. Barr, 956 F.2d

1178, 1187 (D.C. Cir. 1992) (finding the duty to vacate was

“certain” where executive branch officials lost below and

Congress amended the statute); see also U.S. Bancorp, 513

U.S. at 25 n.3 (noting the “implicit conclusion” in United

States v. Munsingwear, 340 U.S. 36 (1950), that the “repeal

of administrative regulations cannot fairly be attributed to the

Executive Branch when it litigates in the name of the United

States”); U.S. Dep’t of the Treasury v. Galioto, 477 U.S. 556,

559-60 (1986) (vacating for mootness the lower court’s judgment that the federal firearms statutes were unconstitutional

because “Congress came to the conclusion, as a matter of legislative policy, that the firearms statutes should be redrafted”).

The principle that legislation is attributed to the legislature

alone is inherent in our separation of powers. See Khodara,

237 F.3d at 195 (“Mindful of the fact that legislative actions

are presumptively legitimate, we are wary of impugning the

motivations that underlie a legislature’s actions.” (citations

and internal quotation marks omitted)); Nat’l Black Police

Ass’n, 108 F.3d at 352 (“The legislature may act out of reasons totally independent of the pending lawsuit, or because

10630 CHEMICAL PRODUCERS v. SYNGENTA CROP
the lawsuit has convinced it that the existing law is flawed.”);

id. at 353 (“Separation of powers concerns provide further

reason to exempt . . . the situation of a case which has become

moot on appeal due to passage of legislation.”); Am. Library

Ass’n, 956 F.2d at 1187 (“Congress rendered the case moot by

passing legislation designed to repair what may have been a

constitutionally defective statute. Congress’ action represents

responsible lawmaking, not manipulation of the judicial process.”). 

The rule of vacatur that we recognize is for mootness

caused by enactments of Congress and state legislatures. The

strength of the rule may attenuate for lesser public bodies and

those with mixed legislative and executive character, where

closer inquiry may be permissible. We do not have occasion

in this case to calibrate that attenuation. 

[14] The statutory amendment that moots this case legally

cannot be attributed to the Association, regardless of its legislative advocacy. We accordingly vacate the lower court’s

judgment and remand with instructions to dismiss the case as

moot.

VACATED and REMANDED.

CHEMICAL PRODUCERS v. SYNGENTA CROP 10631