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

No. 07-16458 RESOURCE COUNCILS a Montana

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
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,

No. 07-16492 a Michigan nonprofit corp.; SIERRA

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; 

7868 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 

GEERTSON SEED FARMS v. MONSANTO COMPANY 7869
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

7870 GEERTSON SEED FARMS v. MONSANTO COMPANY
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. 

GEERTSON SEED FARMS v. MONSANTO COMPANY 7871
COUNSEL

Marc Kesselman, Washington, D.C., for defendantsintervenors/appellants Government.

Maureen Mahoney, Washington, D.C., for defendantsintervenors/appellants Monsanto et al.

George Kimbrell, Washington, D.C., for the plaintiffsappellees.

ORDER

The opinion and dissent filed September 2, 2008, and

appearing at 541 F.3d 938 (9th Cir. 2008), are hereby

7874 GEERTSON SEED FARMS v. MONSANTO COMPANY
amended. The amended opinion and dissent are filed concurrently with this Order.

With these amendments, Judges Schroeder and Fairbank

have voted to deny the petition for panel rehearing and recommend 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 Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the

new variety with other alfalfa, thereby possibly causing conGEERTSON SEED FARMS v. MONSANTO COMPANY 7875
ventional alfalfa to disappear. Monsanto and its licensee, Forage 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 district court did not abuse its discretion in entering the injunction 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 genetically 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 developer of Roundup Ready alfalfa seed.

APHIS, a division of the United States Department of Agriculture, 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.

7876 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 geographic 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 prepared an Environmental Assessment (“EA”) in accordance

with NEPA and its implementing regulations. In the EA,

APHIS explained that alfalfa is pollinated by insects, primarily 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 nongenetically engineered alfalfa, it explained that the National

Organic Program mandates buffer zones around organic production 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 commenting 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 growers, cited concerns that inadvertent gene transmission would

occur, and that foreign and domestic markets may not accept

GEERTSON SEED FARMS v. MONSANTO COMPANY 7877
products that cannot be guaranteed to be non-genetically engineered. 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 significant 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 violations 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 February 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 district 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 argument, the court entered a preliminary injunction on March 12,

2007. The preliminary injunction enjoined all planting of

7878 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 prepared 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 permanent 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 forward, 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 distances from other crops and requiring certain harvesting conditions to minimize gene flow to non-genetically engineered

alfalfa seeds. 

The district court considered voluminous evidentiary submissions 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, including 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 Hammon’s study, which they argued supports their position, as

GEERTSON SEED FARMS v. MONSANTO COMPANY 7879
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 remedy, 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 defendants’ 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 nonpermitted 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 contamination 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 relevant 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 enjoining future planting. 

7880 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 overbroad 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 interest 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 Conservation 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 analysis 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. Cheyenne 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 proGEERTSON SEED FARMS v. MONSANTO COMPANY 7881
tect the environment” if injury is found to be sufficiently

likely because “[e]nvironmental injury, by its nature, can seldom 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 environment 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 applying 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 violation is found and said that it was required to “engage in the

7882 GEERTSON SEED FARMS v. MONSANTO COMPANY
traditional balance of harms analysis.” The court then discussed 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 contamination 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 contamination was irreparable environmental harm because contamination 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 contamination 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 hayto-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 testimony 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 MonsanGEERTSON SEED FARMS v. MONSANTO COMPANY 7883
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 certain conditions, and only enjoined future planting, which demonstrates that the court crafted a remedy that accounted for the

hardships to both sides. Monsanto and Forage Genetics contend 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 recognizing 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 availability 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 development 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 discretion. 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. 

7884 GEERTSON SEED FARMS v. MONSANTO COMPANY
[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 primarily 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 district 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

GEERTSON SEED FARMS v. MONSANTO COMPANY 7885
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 permanent 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 conditions are imposed, as well as to resolve disputes with plaintiffs’ witnesses.” This evidence concerned the degree of the

risk of environmental damage. There were voluminous documentary submissions from both sides disputing, among other

things, the likelihood of genetic contamination of nonRoundup Ready alfalfa fields. APHIS did not request an evidentiary 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 intervenors “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

7886 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 matters 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 setting,” principally because Idaho Watersheds involved interim

measures that would be in place only until the EIS was completed, 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 situation 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 hearing 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 duplicate 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. 

GEERTSON SEED FARMS v. MONSANTO COMPANY 7887
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 evidentiary 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 government 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 contended 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 district court should have given conclusive deference to the limited mitigation measures APHIS proposed during the remedy

7888 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 permitted future planting. Under these circumstances, there was

no abuse of discretion. 

[10] The injunction involved only interim measures pending 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 environmental 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 evidentiary 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 altogether new exception to the evidentiary hearing requirement

we recognized in Charlton.

The majority acknowledges that the facts were sharply disputed by the parties. To be sure, the parties disputed almost

GEERTSON SEED FARMS v. MONSANTO COMPANY 7889
every element of the facts underlying the proposed injunction.

Specifically, the parties disputed the risk of genetic contamination that could occur if the district court did not enjoin the

further planting of Roundup Ready alfalfa while APHIS prepared the EIS. Given that the parties disputed the facts underlying 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’ witnesses.” In discussing Monsanto’s and Forage Genetics’

request for an evidentiary hearing, the majority notes

APHIS’s failure to request an evidentiary hearing. This failure, 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 requirement 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 altogether 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 district court’s refusal to conduct an evidentiary hearing in Idaho

7890 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 efficient resolution pending completion of the agency determinations. 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 requirements 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 failure 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 hearings on motions by the parties. In five of these hearings, only

argument by lawyers was heard. In one hearing Forage Genetics 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 aforemenGEERTSON SEED FARMS v. MONSANTO COMPANY 7891
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 submissions 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 further 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 permanent 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 hearing 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, listening 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 witnesses’ credibility in the face of cross examination. That step

7892 GEERTSON SEED FARMS v. MONSANTO COMPANY
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 transmission 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 distributors who planned on RRA alfalfa being available. I would be

more comfortable with a nationwide injunction had the district court held an evidentiary hearing to consider live testimony, 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 evidentiary 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 hearing 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

GEERTSON SEED FARMS v. MONSANTO COMPANY 7893
decision regarding the controversy. Instead of giving deference 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.

7894 GEERTSON SEED FARMS v. MONSANTO COMPANY