Filed 3/6/24 Pollinator Stewardship Council v. Cal. Dept. of Pesticide Reg. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

POLLINATOR STEWARDSHIP COUNCIL et al., Plaintiffs and Appellants, A164626 v. (Alameda County CALIFORNIA DEPARTMENT OF Super. Ct. No. RG20066156) PESTICIDE REGULATION et al., Defendants and Appellants; DOW AGROSCIENCES LLC et al., Real Parties in Interest and Appellants; SISKIYOU COUNTY DEPARTMENT OF AGRICULTURE et al., Real Parties in Interest and Respondents.

MEMORANDUM OPINION1 This appeal arises from three decisions made by the California Department of Pesticide Regulation (the Department) in 2020 to register, or

The Department and real parties in interest, Dow Agrosciences LLC and Corteva, Inc. (collectively, Dow), appealed, arguing that Beekeepers’ petition should have been denied in its entirety. Beekeepers cross-appealed, arguing that we should exercise our discretion to reach the merits of their challenge to the special local need registration.

Briefing of the appeal and cross-appeal was completed in June 2023.

On January 23, 2024, the Department informed us in a letter that on January 8, 2021 the U.S. Environmental Protection Agency (U.S. EPA) had approved new labels for the pesticide products at issue, and that the new labels supersede the labels that U.S. EPA had previously approved, and which were approved by the Department in 2020.2 The letter further stated

Applicable Law Our Supreme Court recently summarized the applicable law on mootness in In re D.P. (2023) 14 Cal.5th 266. “A court is tasked with the duty ‘ “to decide actual controversies by a judgment which can be carried into

pesticide registration by the Department]; Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049 [same].)

“A case becomes moot when events ‘ “render[ ] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief.” ’ [Citation.] For relief to be ‘effective,’ two requirements must be met.

First, the plaintiff must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks.” (Ibid.) However, “[e]ven when a case is moot, courts may exercise their ‘inherent discretion’ to reach the merits of the dispute. [Citation.] As a rule, courts will generally exercise their discretion to review a moot case when ‘the case presents an issue of broad public interest that is likely to recur,’ ‘when there may be a recurrence of the controversy between the parties,’ or ‘when a material question remains for the court’s determination.’ ” (Id. at p. 282.)

The Parties’ Positions on the Appeal The Department and Dow argue that because the labels that were approved as part of the Department’s 2020 registration have been superseded, Dow cannot sell sulfoxaflor products in California regardless of the outcome of this appeal, and that therefore their appeal is now moot. The Department, but not Dow, argues that we should nevertheless exercise our discretion to reach the merits. Both the Department and Dow argue that if we decline to reach the merits, we should remand the matter to the trial court with instructions to vacate its judgment and enter a judgment dismissing Beekeepers’ petition.

Beekeepers argue that the appeal is not moot, and that even if it is, we should exercise our discretion to reach the merits.

Mootness of the Appeal There is no dispute that as things stand, Dow may not sell sulfoxaflor products in California, regardless of the outcome of this appeal. The 2020 statewide registrations that Beekeepers have challenged apply to products with specific labels, and the time in which those labels could be used has expired.5 The Department and Dow argue that because Dow cannot sell sulfoxaflor products in California regardless of how this court might rule on the 2020 state registrations, the ruling would have no practical effect or impact, and therefore the appeal is moot.

Beekeepers argue that even though Dow cannot sell sulfoxaflor in California, the case is not moot because the 2020 registrations have not been vacated. Beekeepers contend that this court can grant them effective relief by affirming the trial court’s judgment and writ of mandate, which directs the Department to set aside and void its 2020 decisions to register sulfoxaflor for statewide use. This would be effective relief, according to Beekeepers, because “unless the registration decisions at issue are set aside, Dow can resume sales of sulfoxaflor in California immediately and without any further [Department] approval or process the moment the U.S. [EPA] reinstates the original, 2020 labels.” And Beekeepers further claim that the U.S. EPA “can reinstate the original labels . . . at any point without any further federal environmental review or process,” and that the U.S. EPA is “likely” to do so.

Beekeepers do not support these assertions with any citations to evidence or authority, and we disregard them.6 Dow and the Department have the better argument. The fact that Dow cannot sell the products approved in the 2020 registrations means that there is no “ongoing harm,” and that means this court cannot provide Beekeepers effective relief. (In re D.P., supra, 14 Cal.5th at p. 276.) The appeal is moot.

Reaching the Merits The Department and Beekeepers ask us to nevertheless exercise our discretion to reach the merits of the appeal, arguing that the matter is of general public interest and likely to recur in the future. Because the case concerns the information the Department must provide to the public in connection with pesticide approvals and the effects of pesticides on pollinators, there is no doubt that the appeal presents questions of public interest. And because this appeal raises questions about the adequacy of the information provided by the Department in its public reports on sulfoxaflor, those questions may well recur in any future challenges to registrations. But any future challenge to a pesticide registration must be evaluated in terms of the particular decision documents and the administrative record that supports the registration.7 (See Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 777 [judicial review of agency compliance

Apparently Dow has done so, but the Department has not acted on the new application and does not intend to act in the immediate future.

Dismissal of the Appeal As a general matter, if “a case becomes moot pending an appellate decision, the reviewing court will simply dismiss the appeal on the ground it can no longer grant any effective relief.” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590 (La Mirada).) Dismissal of an appeal as moot has the effect of affirming the underlying judgment. (Ibid.) In certain circumstances, however, the reviewing court may “ ‘ “dispose of the case, not merely of the appellate proceeding which brought it here . . .” [citation] . . . by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding.’ ” (Id. at pp. 590–591.) Those circumstances may exist where the case was moot before the trial court decided it (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574–1575), but no one argues that

Beekeepers’ challenge to the statewide approvals was moot at the time the trial court issued its decision. In addition, reversal with directions to dismiss may be appropriate where “subsequent legislative or administrative action renders an entire controversy moot,” as long as “the events that mooted the underlying controversies were not initiated by the appellants.” (La Mirada, supra, 2 Cal.App.5th at pp. 590–591.)

This appeal has become moot because of the interaction of federal and state law: the U.S. EPA’s approval of new labels for the sulfoxaflor products at issue in this case superseded the approvals of the labels on which the Department’s registration relied, and because the Department can only register pesticides if their labels have been approved by the U.S. EPA, the Department’s approvals of the products here are of no effect. But the event that led to this appeal becoming moot—the U.S. EPA’s approval of new labels—was initiated by Dow’s application to the U.S. EPA for approval of the new labels. In these circumstances, the proper disposition is dismissal of the appeal. (La Mirada, supra, 2 Cal.App.5th at p. 591 [where case becomes moot as a result of actions by appellant, the “proper course is to dismiss the appeal, not to vacate the trial court’s judgment”].)

Beekeepers’ Cross-appeal There is no dispute that the special local need registration at issue in the cross-appeal expired even before the trial court ruled on the petition for writ of mandate. Accordingly, in briefing the cross-appeal, Beekeepers did not argue that this court can provide them the relief they sought below, which was to vacate the registration and set it aside. Instead, Beekeepers argued that we should reach the merits of the cross-appeal because the special local need registration raises issues of broad public interest that are

likely to recur in future litigation over special need registrations for sulfoxaflor and other pesticides.

Our conclusion here is the same as for the statewide registrations. Just as any challenge to a future statewide registration will depend upon the facts and circumstances pertaining to that specific registration, so too any challenge to a future special local need registration will depend upon the contents of the Department’s decision documents and the administrative record pertinent to the registration. Accordingly, we dismiss the cross-appeal as moot.8 DISPOSITION The appeal and cross appeal are dismissed as moot. Beekeepers shall recover their costs on appeal.

_________________________ Mayfield, J.

WE CONCUR:

_________________________ Stewart, P. J.

_________________________ Richman, J.

A164626 (Pollinator Stewardship Council v. Department of Pesticide Regulation)