RUCKELSHAUS
v.
MONSANTO
CO.,
467
U.
S.
986,
104
S.
Ct.
2862,
81
L.
Ed.
2d
815
(
1984)
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RUCKELSHAUS
v.
MONSANTO
CO.,
467
U.
S.
986,
104
S.
Ct.
2862,
81
L.
Ed.
2d
815
(
1984)
[
1]
SUPREME
COURT
OF
THE
UNITED
STATES
[
2]
No.
83­
196
[
3]
1984.
SCT.
2588
<
http://
www.
versuslaw.
com>,
467
U.
S.
986,
104
S.
Ct.
2862,
81
L.
Ed.
2d
815,
52
U.
S.
L.
W.
4886
[
4]
June
26,
1984
[
5]
RUCKELSHAUS,
ADMINISTRATOR,
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
v.
MONSANTO
CO.

[
6]
APPEAL
FROM
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
EASTERN
DISTRICT
OF
MISSOURI.

[
7]
Deputy
Solicitor
General
Wallace
argued
the
cause
for
appellant.
With
him
on
the
briefs
were
Solicitor
General
Lee,
Acting
Assistant
Attorney
General
Liotta,
Deputy
Assistant
Attorney
General
Walker,
Jerrold
J.
Ganzfried,
Raymond
N.
Zagone,
Anne
S.
Almy,
and
John
A.
Bryson.

[
8]
A.
Raymond
Randolph,
Jr.,
argued
the
cause
for
appellee.
With
him
on
the
briefs
were
David
G.
Norrell,
Thomas
O.
Kuhns,
W.
Wayne
Withers,
Frederick
A.
Provorny,
Gary
S.
Dyer,
C.
David
Barrier,
and
Kenneth
R.
Heineman.*
[
9]
Blackmun,
J.,
delivered
the
opinion
of
the
Court,
in
which
Burger,
C.
J.,
and
Brennan,
Marshall,
Powell,
Rehnquist,
and
Stevens,
JJ.,
joined,
and
in
which
O'connor,
J.,
joined,
except
for
Part
IV­
B
and
a
statement
on
p.
1013.
O'connor,
J.,
filed
an
opinion
Concurring
in
part
and
Dissenting
in
part,
post,
p.
1021.
White,
J.,
took
no
part
in
the
consideration
or
decision
of
the
case.

[
10]
The
opinion
of
the
court
was
delivered
by:
Blackmun
[
11]
The
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
(
FIFRA)
authorizes
the
Environmental
Protection
Agency
(
EPA)
to
use
data
submitted
by
an
applicant
for
registration
of
a
covered
product
(
hereinafter
pesticide)
in
evaluating
the
application
of
a
subsequent
applicant,
and
to
disclose
publicly
some
of
the
submitted
data.
Under
the
data­
consideration
provisions
of
º
3,
as
amended
in
1978,
applicants
now
are
granted
a
10­
year
period
of
exclusive
use
for
data
on
new
active
ingredients
contained
in
pesticides
registered
after
September
30,
1978,
while
all
other
data
submitted
after
December
31,
1969,
may
be
cited
and
considered
in
support
of
another
application
for
15
years
after
the
original
submission
if
the
applicant
offers
to
compensate
the
original
submitter.
If
the
parties
cannot
agree
on
the
amount
of
compensation,
either
may
initiate
a
binding
arbitration
proceeding,
and
if
an
original
submitter
refuses
to
participate
in
negotiations
or
arbitration,
he
forfeits
his
claim
for
compensation.
Data
that
do
not
qualify
for
either
the
10­
year
period
of
exclusive
use
or
the
15­
year
period
of
compensation
may
be
considered
by
EPA
without
limitation.
Section
10,
as
amended
in
1978,
authorizes,
in
general,
public
disclosure
of
all
health,
safety,
and
environmental
data
even
though
it
may
result
in
disclosure
of
trade
secrets.
Appellee,
a
company
headquartered
in
Missouri,
is
an
inventor,
producer,
and
seller
of
pesticides,
and
invests
substantial
sums
in
developing
active
ingredients
for
pesticides
and
in
producing
end­
use
products
that
combine
such
ingredients
with
inert
ingredients.
Appellee
brought
suit
in
Federal
District
Court
for
injunctive
and
declaratory
relief,
alleging,
inter
alia,
that
the
data­
consideration
and
data­
disclosure
provisions
of
FIFRA
effected
a
"
taking"
of
property
without
just
compensation,
in
violation
of
the
Fifth
Amendment,
and
that
the
data­
consideration
provisions
violated
the
Amendment
because
they
effected
a
taking
of
property
for
a
private,
rather
than
a
public,
purpose.
The
District
Court
held
that
the
challenged
provisions
of
FIFRA
are
unconstitutional,
and
permanently
enjoined
EPA
from
implementing
or
enforcing
those
provisions.
[
12]
Held
:

[
13]
1.
To
the
extent
that
appellee
has
an
interest
in
its
health,
safety,
and
environmental
data
cognizable
as
a
trade­
secret
property
right
under
Missouri
law,
that
property
right
is
protected
by
the
Taking
Clause
of
the
Fifth
Amendment.
Despite
their
intangible
nature,
trade
secrets
have
many
of
the
characteristics
of
more
traditional
forms
of
property.
Moreover,
this
Court
has
found
other
kinds
of
intangible
interests
to
be
property
for
purposes
of
the
Clause.
Pp.
1000­
1004.

[
14]
2.
EPA's
consideration
or
disclosure
of
data
submitted
by
appellee
prior
to
October
22,
1972,
or
after
September
30,
1978,
does
not
effect
a
taking,
but
EPA's
consideration
or
disclosure
of
certain
health,
safety,
and
environmental
data
constituting
a
trade
secret
under
state
law
and
submitted
by
appellee
between
those
two
dates
may
constitute
a
taking
under
certain
conditions.
Pp.
1004­
1014.

[
15]
(
a)
A
factor
for
consideration
in
determining
whether
a
governmental
action
short
of
acquisition
or
destruction
of
property
has
gone
beyond
proper
"
regulation"
and
effects
a
"
taking"
is
whether
the
action
interferes
with
reasonable
investment­
backed
expectations.
With
respect
to
any
health,
safety,
and
environmental
data
that
appellee
submitted
to
EPA
after
the
effective
date
of
the
1978
FIFRA
amendments
(
October
1,
1978),
appellee
could
not
have
had
a
reasonable,
investment­
backed
expectation
that
EPA
would
keep
the
data
confidential
beyond
the
limits
prescribed
in
the
amended
statute
itself.
As
long
as
appellee
is
aware
of
the
conditions
under
which
the
data
are
submitted,
and
the
conditions
are
rationally
related
to
a
legitimate
Government
interest,
a
voluntary
submission
of
data
in
exchange
for
the
economic
advantages
of
a
registration
can
hardly
be
called
a
taking.
Pp.
1005­
1008.

[
16]
(
b)
Prior
to
its
amendment
in
1972
(
effective
October
22,
1972),
FIFRA
was
silent
with
respect
to
EPA's
authorized
use
and
disclosure
of
data
submitted
to
it
in
connection
with
an
application
for
registration.
Although
the
Trade
Secrets
Act
provides
a
criminal
penalty
for
a
Government
employee
who
discloses,
in
a
manner
not
authorized
by
law,
any
trade­
secret
information
revealed
to
him
during
the
course
of
his
official
duties,
it
is
not
a
guarantee
of
confidentiality
to
submitters
of
data,
and,
absent
an
express
promise,
appellee
had
no
reasonable,
investment­
backed
expectation
that
its
information
submitted
to
EPA
before
October
22,
1972,
would
remain
inviolate
in
the
EPA's
hands.
The
possibility
was
substantial
that
the
Federal
Government
at
some
future
time
would
find
disclosure
to
be
in
the
public
interest.
A
fortiori,
the
Trade
Secrets
Act,
which
penalizes
only
unauthorized
disclosure,
cannot
be
construed
as
any
sort
of
assurance
against
internal
agency
use
of
submitted
data
during
consideration
of
the
application
of
a
subsequent
applicant
for
registration.
Pp.
1008­
1010.

[
17]
(
c)
However,
under
the
statutory
scheme
in
effect
between
October
22,
1972,
and
September
30,
1978,
a
submitter
was
given
an
opportunity
to
protect
its
trade
secrets
from
disclosure
by
designating
them
as
trade
secrets
at
the
time
of
submission.
The
explicit
governmental
guarantee
to
registration
applicants
of
confidentiality
and
exclusive
use
with
respect
to
trade
secrets
during
this
period
formed
the
basis
of
a
reasonable
investment­
backed
expectation.
If
EPA,
consistent
with
current
provisions
of
FIFRA,
were
now
to
disclose
such
trade­
secret
data
or
consider
those
data
in
evaluating
the
application
of
a
subsequent
applicant
in
a
manner
not
authorized
by
the
version
of
FIFRA
in
effect
between
1972
and
1978,
its
actions
would
frustrate
appellee's
reasonable
investment­
backed
expectation.
If,
however,
arbitration
pursuant
to
FIFRA
were
to
yield
just
compensation
for
the
loss
in
the
market
value
of
appellee's
trade­
secret
data
suffered
because
of
EPA's
consideration
of
the
data
in
connection
with
another
application
(
no
arbitration
having
yet
occurred),
then
appellee
would
have
no
claim
against
the
Government
for
a
taking.
Pp.
1010­
1014.

[
18]
3.
Any
taking
of
private
property
that
may
occur
in
connection
with
EPA's
use
of
data
submitted
to
it
by
appellee
between
October
22,
1972,
and
September
30,
1978,
is
a
taking
for
a
"
public
use,"
rather
than
for
a
"
private
use,"
even
though
subsequent
applicants
may
be
the
most
direct
beneficiaries.
So
long
as
a
taking
has
a
conceivable
public
character,
the
means
by
which
it
will
be
attained
is
for
Congress
to
determine.
Congress
believed
that
the
data­
consideration
provisions
would
eliminate
costly
duplication
of
research
and
streamline
the
registration
process,
making
new
end­
use
products
available
to
consumers
more
quickly.
Such
a
procompetitive
purpose
is
within
Congress'
police
power.
With
regard
to
FIFRA's
data­
disclosure
provisions,
the
optimum
amount
of
disclosure
to
assure
the
public
that
a
product
is
safe
and
effective
is
to
be
determined
by
Congress,
not
the
courts.
Pp.
1014­
1016.

[
19]
4.
A
Tucker
Act
remedy
is
available
to
provide
appellee
with
just
compensation
for
any
taking
of
property
that
may
occur
as
a
result
of
FIFRA's
data­
consideration
and
data­
disclosure
provisions,
and
thus
the
District
Court
erred
in
enjoining
EPA
from
acting
under
those
provisions.
Neither
FIFRA
nor
its
legislative
history
discusses
the
interaction
between
FIFRA
and
the
Tucker
Act,
and
inferring
a
withdrawal
of
Tucker
Act
jurisdiction
would
amount
to
a
disfavored
partial
repeal
by
implication
of
the
Tucker
Act.
FIFRA's
provision
that
an
original
submitter
of
data
forfeits
his
right
to
compensation
from
a
later
submitter
for
the
use
of
the
original
submitter's
data
if
he
fails
to
participate
in,
or
comply
with
the
terms
of,
a
negotiated
or
arbitrated
compensation
settlement
merely
requires
a
claimant
to
first
seek
satisfaction
through
FIFRA's
procedure
before
asserting
a
Tucker
Act
claim.
Pp.
1016­
1019.

[
20]
5.
Because
the
Tucker
Act
is
available
as
a
remedy
for
any
uncompensated
taking
appellee
may
suffer
as
a
result
of
the
operation
of
the
challenged
provisions
of
FIFRA,
appellee's
challenges
to
the
constitutionality
of
the
arbitration
and
compensation
scheme
of
FIFRA
are
not
ripe
for
resolution.
Pp.
1019­
1020.

[
21]
JUSTICE
BLACKMUN
delivered
the
opinion
of
the
Court.

[
22]
In
this
case,
we
are
asked
to
review
a
United
States
District
Court's
determination
that
several
provisions
of
the
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
(
FIFRA),
61
Stat.
163,
as
amended,
7
U.
S.
C.
º
136
et
seq.,
are
unconstitutional.
The
provisions
at
issue
authorize
the
Environmental
Protection
Agency
(
EPA)
to
use
data
submitted
by
an
applicant
for
registration
of
a
pesticide
*
fn1
in
evaluating
the
application
of
a
subsequent
applicant,
and
to
disclose
publicly
some
of
the
submitted
data.

[
23]
I
[
24]
Over
the
past
century,
the
use
of
pesticides
to
control
weeds
and
minimize
crop
damage
caused
by
insects,
disease,
and
animals
has
become
increasingly
more
important
for
American
agriculture.
See
S.
Rep.
No.
95­
334,
p.
32
(
1977);
S.
Rep.
No.
92­
838,
pp.
3­
4,
6­
7
(
1972);
H.
R.
Rep.
No.
92­
511,
pp.
3­
7
(
1971).
While
pesticide
use
has
led
to
improvements
in
productivity,
it
has
also
led
to
increased
risk
of
harm
to
humans
and
the
environment.
See
S.
Rep.
No.
92­
838,
at
3­
4,
6­
7;
H.
R.
Rep.
No.
92­
511,
at
3­
7.
Although
the
Federal
Government
has
regulated
pesticide
use
for
nearly
75
years,
*
fn2
FIFRA
was
first
adopted
in
1947.
61
Stat.
163.
[
25]
As
first
enacted,
FIFRA
was
primarily
a
licensing
and
labeling
statute.
It
required
that
all
pesticides
be
registered
with
the
Secretary
of
Agriculture
prior
to
their
sale
in
interstate
or
foreign
commerce.
º
º
3(
a)
and
4(
a)
of
the
1947
Act,
61
Stat.
166­
167.
The
1947
legislation
also
contained
general
standards
setting
forth
the
types
of
information
necessary
for
proper
labeling
of
a
registered
pesticide,
including
directions
for
use;
warnings
to
prevent
harm
to
people,
animals,
and
plants;
and
claims
made
about
the
efficacy
of
the
product.
º
º
2(
u)(
2)
and
3(
a)(
3).

[
26]
Upon
request
of
the
Secretary,
an
applicant
was
required
to
submit
test
data
supporting
the
claims
on
the
label,
including
the
formula
for
the
pesticide.
º
º
4(
a)
and
(
b).
The
1947
version
of
FIFRA
specifically
prohibited
disclosure
of
"
any
information
relative
to
formulas
of
products,"
º
º
3(
c)(
4)
and
8(
c),
but
was
silent
with
respect
to
the
disclosure
of
any
of
the
health
and
safety
data
submitted
with
an
application.
*
fn3
[
27]
In
1970,
the
Department
of
Agriculture's
FIFRA
responsibilities
were
transferred
to
the
then
newly
created
Environmental
Protection
Agency,
whose
Administrator
is
the
appellant
in
this
case.
See
Reorganization
Plan
No.
3
of
1970,
35
Fed.
Reg.
15623
(
1970),
5
U.
S.
C.
App.,
p.
1132.

[
28]
Because
of
mounting
public
concern
about
the
safety
of
pesticides
and
their
effect
on
the
environment
and
because
of
a
growing
perception
that
the
existing
legislation
was
not
equal
to
the
task
of
safeguarding
the
public
interest,
see
S.
Rep.
No.
92­
838,
at
3­
9;
S.
Rep.
No.
92­
970,
p.
9
(
1972);
H.
R.
Rep.
No.
92­
511,
at
5­
13,
Congress
undertook
a
comprehensive
revision
of
FIFRA
through
the
adoption
of
the
Federal
Environmental
Pesticide
Control
Act
of
1972,
86
Stat.
973.
The
amendments
transformed
FIFRA
from
a
labeling
law
into
a
comprehensive
regulatory
statute.
H.
R.
Rep.
No.
92­
511,
at
1.
As
amended,
FIFRA
regulated
the
use,
as
well
as
the
sale
and
labeling,
of
pesticides;
regulated
pesticides
produced
and
sold
in
both
intrastate
and
interstate
commerce;
provided
for
review,
cancellation,
and
suspension
of
registration;
and
gave
EPA
greater
enforcement
authority.
Congress
also
added
a
new
criterion
for
registration:
that
EPA
determine
that
the
pesticide
will
not
cause
"
unreasonable
adverse
effects
on
the
environment."
º
º
3(
c)(
5)(
C)
and
(
D),
86
Stat.
980­
981.
[
29]
For
purposes
of
this
litigation,
the
most
significant
of
the
1972
amendments
pertained
to
the
pesticide­
registration
procedure
and
the
public
disclosure
of
information
learned
through
that
procedure.
Congress
added
to
FIFRA
a
new
section
governing
public
disclosure
of
data
submitted
in
support
of
an
application
for
registration.
Under
that
section,
the
submitter
of
data
could
designate
any
portions
of
the
submitted
material
it
believed
to
be
"
trade
secrets
or
commercial
or
financial
information."
º
10(
a),
86
Stat.
989.
Another
section
prohibited
EPA
from
publicly
disclosing
information
which,
in
its
judgment,
contained
or
related
to
"
trade
secrets
or
commercial
or
financial
information."
º
10(
b).
In
the
event
that
EPA
disagreed
with
a
submitter's
designation
of
certain
information
as
"
trade
secrets
or
commercial
or
financial
information"
and
proposed
to
disclose
that
information,
the
original
submitter
could
institute
a
declaratory
judgment
action
in
federal
district
court.
º
10(
c).

[
30]
The
1972
amendments
also
included
a
provision
that
allowed
EPA
to
consider
data
submitted
by
one
applicant
for
registration
in
support
of
another
application
pertaining
to
a
similar
chemical,
provided
the
subsequent
applicant
offered
to
compensate
the
applicant
who
originally
submitted
the
data.
º
3(
c)(
1)(
D).
In
effect,
the
provision
instituted
a
mandatory
data­
licensing
scheme.
The
amount
of
compensation
was
to
be
negotiated
by
the
parties,
or,
in
the
event
negotiations
failed,
was
to
be
determined
by
EPA,
subject
to
judicial
review
upon
the
instigation
of
the
original
data
submitter.
The
scope
of
the
1972
data­
consideration
provision,
however,
was
limited,
for
any
data
designated
as
"
trade
secrets
or
commercial
or
financial
information"
exempt
from
disclosure
under
º
10
could
not
be
considered
at
all
by
EPA
to
support
another
registration
application
unless
the
original
submitter
consented.
Ibid.

[
31]
The
1972
amendments
did
not
specify
standards
for
the
designation
of
submitted
data
as
"
trade
secrets
or
commercial
or
financial
information."
In
addition,
Congress
failed
to
designate
an
effective
date
for
the
data­
consideration
and
disclosure
schemes.
In
1975,
Congress
amended
º
3(
c)(
1)(
D)
to
provide
that
the
data­
consideration
and
data­
disclosure
provisions
applied
only
to
data
submitted
on
or
after
January
1,
1970,
89
Stat.
755,
but
left
the
definitional
question
unanswered.

[
32]
Much
litigation
centered
around
the
definition
of
"
trade
secrets
or
commercial
or
financial
information"
for
the
purposes
of
the
data­
consideration
and
data­
disclosure
provisions
of
FIFRA.
EPA
maintained
that
the
exemption
from
consideration
or
disclosure
applied
only
to
a
narrow
range
of
information,
principally
statements
of
formulae
and
manufacturing
processes.
In
a
series
of
lawsuits,
however,
data­
submitting
firms
challenged
EPA's
interpretation
and
obtained
several
decisions
to
the
effect
that
the
term
"
trade
secrets"
applied
to
any
data,
including
health,
safety,
and
environmental
data,
that
met
the
definition
of
trade
secrets
set
forth
in
Restatement
of
Torts
º
757
(
1939).
See,
e.
g.,
Mobay
Chemical
Corp.
v.
Costle,
447
F.
Supp.
811
(
WD
Mo.
1978);
Chevron
Chemical
Co.
v.
Costle,
443
F.
Supp.
1024
(
ND
Cal.
1978).
These
decisions
prevented
EPA
from
disclosing
much
of
the
data
on
which
it
based
its
decision
to
register
pesticides
and
from
considering
the
data
submitted
by
one
applicant
in
reviewing
the
application
of
a
later
applicant.
See
S.
Rep.
No.
95­
334,
at
7;
H.
R.
Rep.
No.
95­
663,
p.
18
(
1977).

[
33]
Because
of
these
and
other
problems
with
the
regulatory
scheme
embodied
in
FIFRA
as
amended
in
1972,
see
S.
Rep.
No.
95­
334,
at
2­
5;
H.
R.
Rep.
No.
95­
663,
at
15­
21;
see
generally
EPA
Office
of
Pesticide
Programs,
FIFRA:
Impact
on
the
Industry
(
1977),
reprinted
in
S.
Rep.
No.
95­
334,
at
34­
68,
Congress
enacted
other
amendments
to
FIFRA
in
1978.
These
were
effected
by
the
Federal
Pesticide
Act
of
1978,
92
Stat.
819.
The
new
amendments
included
a
series
of
revisions
in
the
data­
consideration
and
data­
disclosure
provisions
of
FIFRA's
º
º
3
and
10,
7
U.
S.
C.
º
º
136a
and
136h.

[
34]
Under
FIFRA,
as
amended
in
1978,
applicants
are
granted
a
10­
year
period
of
exclusive
use
for
data
on
new
active
ingredients
contained
in
pesticides
registered
after
September
30,
1978.
º
3(
c)(
1)(
D)(
i).
All
other
data
submitted
after
December
31,
1969,
may
be
cited
and
considered
in
support
of
another
application
for
15
years
after
the
original
submission
if
the
applicant
offers
to
compensate
the
original
submitter.
º
3(
c)(
1)(
D)(
ii).
*
fn4
If
the
parties
cannot
agree
on
the
amount
of
compensation,
either
may
initiate
a
binding
arbitration
proceeding.
The
results
of
the
arbitration
proceeding
are
not
subject
to
judicial
review,
absent
fraud
or
misrepresentation.
The
same
statute
provides
that
an
original
submitter
who
refuses
to
participate
in
negotiations
or
in
the
arbitration
proceeding
forfeits
his
claim
for
compensation.
Data
that
do
not
qualify
for
either
the
10­
year
period
of
exclusive
use
or
the
15­
year
period
of
compensation
may
be
considered
by
EPA
without
limitation.
º
3(
c)(
1)(
D)(
iii).

[
35]
Also
in
1978,
Congress
added
a
new
subsection,
º
10(
d),
7
U.
S.
C.
º
136h(
d),
that
provides
for
disclosure
of
all
health,
safety,
and
environmental
data
to
qualified
requesters,
notwithstanding
the
prohibition
against
disclosure
of
trade
secrets
contained
in
º
10(
b).
The
provision,
however,
does
not
authorize
disclosure
of
information
that
would
reveal
"
manufacturing
or
quality
control
processes"
or
certain
details
about
deliberately
added
inert
ingredients
unless
"
the
Administrator
has
first
determined
that
the
disclosure
is
necessary
to
protect
against
an
unreasonable
risk
of
injury
to
health
or
the
environment."
º
º
10(
d)(
1)(
A)
to
(
C).
*
fn5
EPA
may
not
disclose
data
to
representatives
of
foreign
or
multi­
national
pesticide
companies
unless
the
original
submitter
of
the
data
consents
to
the
disclosure.
º
10(
g).
Another
subsection
establishes
a
criminal
penalty
for
wrongful
disclosure
by
a
Government
employee
or
contractor
of
confidential
or
trade
secret
data.
º
10(
f).

[
36]
II
[
37]
Appellee
Monsanto
Company
(
Monsanto)
is
an
inventor,
developer,
and
producer
of
various
kinds
of
chemical
products,
including
pesticides.
Monsanto,
headquartered
in
St.
Louis
County,
Mo.,
sells
in
both
domestic
and
foreign
markets.
It
is
one
of
a
relatively
small
group
of
companies
that
invent
and
develop
new
active
ingredients
for
pesticides
and
conduct
most
of
the
research
and
testing
with
respect
to
those
ingredients.
*
fn6
[
38]
These
active
ingredients
are
sometimes
referred
to
as
"
manufacturing­
use
products"
because
they
are
not
generally
sold
directly
to
users
of
pesticides.
Rather,
they
must
first
be
combined
with
"
inert
ingredients"
­­
chemicals
that
dissolve,
dilute,
or
stabilize
the
active
components.
The
results
of
this
process
are
sometimes
called
"
end­
use
products,"
and
the
firms
that
produce
end­
use
products
are
called
"
formulators."
See
the
opinion
of
the
District
Court
in
this
case,
Monsanto
Co.
v.
Acting
Administrator,
United
States
Environmental
Protection
Agency,
564
F.
Supp.
552,
554
(
ED
Mo.
1983).
A
firm
that
produces
an
active
ingredient
may
use
it
for
incorporation
into
its
own
end­
use
products,
may
sell
it
to
formulators,
or
may
do
both.
Monsanto
produces
both
active
ingredients
and
end­
use
products.
Ibid.

[
39]
The
District
Court
found
that
development
of
a
potential
commercial
pesticide
candidate
typically
requires
the
expenditure
of
$
5
million
to
$
15
million
annually
for
several
years.
The
development
process
may
take
between
14
and
22
years,
and
it
is
usually
that
long
before
a
company
can
expect
any
return
on
its
investment.
Id.,
at
555.
For
every
manufacturing­
use
pesticide
the
average
company
finally
markets,
it
will
have
screened
and
tested
20,000
others.
Monsanto
has
a
significantly
better­
than­
average
success
rate;
it
successfully
markets
1
out
of
every
10,000
chemicals
tested.
Ibid.

[
40]
Monsanto,
like
any
other
applicant
for
registration
of
a
pesticide,
must
present
research
and
test
data
supporting
its
application.
The
District
Court
found
that
Monsanto
had
incurred
costs
in
excess
of
$
23.6
million
in
developing
the
health,
safety,
and
environmental
data
submitted
by
it
under
FIFRA.
Id.,
at
560.
The
information
submitted
with
an
application
usually
has
value
to
Monsanto
beyond
its
instrumentality
in
gaining
that
particular
application.
Monsanto
uses
this
information
to
develop
additional
end­
use
products
and
to
expand
the
uses
of
its
registered
products.
The
information
would
also
be
valuable
to
Monsanto's
competitors.
For
that
reason,
Monsanto
has
instituted
stringent
security
measures
to
ensure
the
secrecy
of
the
data.
Ibid.

[
41]
It
is
this
health,
safety,
and
environmental
data
that
Monsanto
sought
to
protect
by
bringing
this
suit.
The
District
Court
found
that
much
of
these
data
"
or
to
trade
secrets
as
defined
by
the
Restatement
of
Torts
and
Confidential,
commercial
information."
Id.,
at
562.

[
42]
Monsanto
brought
suit
in
District
Court,
seeking
injunctive
and
declaratory
relief
from
the
operation
of
the
data­
consideration
provisions
of
FIFRA's
º
3(
c)(
1)(
D),
and
the
data­
disclosure
provisions
of
FIFRA's
º
10
and
the
related
º
3(
c)(
2)(
A).
Monsanto
alleged
that
all
of
the
challenged
provisions
effected
a
"
taking"
of
property
without
just
compensation,
in
violation
of
the
Fifth
Amendment.
In
addition,
Monsanto
alleged
that
the
data­
consideration
provisions
violated
the
Amendment
because
they
effected
a
taking
of
property
for
a
private,
rather
than
a
public,
purpose.
Finally,
Monsanto
alleged
that
the
arbitration
scheme
provided
by
º
3(
c)(
1)(
D)(
ii)
violates
the
original
submitter's
due
process
rights
and
constitutes
an
unconstitutional
delegation
of
judicial
power.

[
43]
After
a
bench
trial,
the
District
Court
concluded
that
Monsanto
possessed
property
rights
in
its
submitted
data,
specifically
including
the
right
to
exclude
others
from
the
enjoyment
of
such
data
by
preventing
their
unauthorized
use
and
by
prohibiting
their
disclosure.
564
F.
Supp.,
at
566.
The
court
found
that
the
challenged
data­
consideration
provisions
"
give
Monsanto's
competitors
a
free
ride
at
Monsanto's
expense."
Ibid.
The
District
Court
reasoned
that
º
3(
c)(
1)(
D)
appropriated
Monsanto's
fundamental
right
to
exclude,
and
that
the
effect
of
that
appropriation
is
substantial.
The
court
further
found
that
Monsanto's
property
was
being
appropriated
for
a
private
purpose
and
that
this
interference
was
much
more
significant
than
the
public
good
that
the
appropriation
might
serve.
564
F.
Supp.,
at
566­
567.

[
44]
The
District
Court
also
found
that
operation
of
the
disclosure
provisions
of
FIFRA
constituted
a
taking
of
Monsanto's
property.
The
cost
incurred
by
Monsanto
when
its
property
is
"
permanently
committed
to
the
public
domain
and
thus
effectively
destroyed"
was
viewed
by
the
District
Court
as
significantly
outweighing
any
benefit
to
the
general
public
from
having
the
ability
to
scrutinize
the
data,
for
the
court
seemed
to
believe
that
the
general
public
could
derive
all
the
assurance
it
needed
about
the
safety
and
effectiveness
of
a
pesticide
from
EPA's
decision
to
register
the
product
and
to
approve
the
label.
Id.,
at
567,
and
n.
4.

[
45]
After
finding
that
the
data­
consideration
provisions
operated
to
effect
a
taking
of
property,
the
District
Court
found
that
the
compulsory
binding­
arbitration
scheme
set
forth
in
º
3(
c)(
1)(
D)(
ii)
did
not
adequately
provide
compensation
for
the
property
taken.
The
court
found
the
arbitration
provision
to
be
arbitrary
and
vague,
reasoning
that
the
statute
does
not
give
arbitrators
guidance
as
to
the
factors
that
enter
into
the
concept
of
just
compensation,
and
that
judicial
review
is
foreclosed
except
in
cases
of
fraud.
564
F.
Supp.,
at
567.
The
District
Court
also
found
that
the
arbitration
scheme
was
infirm
because
it
did
not
meet
the
requirements
of
Art.
III
of
the
Constitution.
Ibid.
Finally,
the
court
found
that
a
remedy
under
the
Tucker
Act
was
not
available
for
the
deprivations
of
property
effected
by
º
º
3
and
10.
564
F.
Supp.,
at
567­
568.

[
46]
The
District
Court
therefore
declared
º
º
3(
c)(
1)(
D),
3(
c)(
2)(
A),
10(
b),
and
10(
d)
of
FIFRA,
as
amended
by
the
Federal
Pesticide
Act
of
1978,
to
be
unconstitutional,
and
permanently
enjoined
EPA
from
implementing
or
enforcing
those
sections.
See
Amended
Judgment,
App.
to
Juris.
Statement
41a.
*
fn7
[
47]
We
noted
probable
jurisdiction.
464
U.
S.
890
(
1983).

[
48]
III
[
49]
In
deciding
this
case,
we
are
faced
with
four
questions:
(
1)
Does
Monsanto
have
a
property
interest
protected
by
the
Fifth
Amendment's
Taking
Clause
in
the
health,
safety,
and
environmental
data
it
has
submitted
to
EPA?
(
2)
If
so,
does
EPA's
use
of
the
data
to
evaluate
the
applications
of
others
or
EPA's
disclosure
of
the
data
to
qualified
members
of
the
public
effect
a
taking
of
that
property
interest?
(
3)
If
there
is
a
taking,
is
it
a
taking
for
a
public
use?
(
4)
If
there
is
a
taking
for
a
public
use,
does
the
statute
adequately
provide
for
just
compensation?

[
50]
For
purposes
of
this
case,
EPA
has
stipulated
that
"
Monsanto
has
certain
property
rights
in
its
information,
research
and
test
data
that
it
has
submitted
under
FIFRA
to
EPA
and
its
predecessor
agencies
which
may
be
protected
by
the
Fifth
Amendment
to
the
Constitution
of
the
United
States."
App.
36.
Since
the
exact
import
of
that
stipulation
is
not
clear,
we
address
the
question
whether
the
data
at
issue
here
can
be
considered
property
for
the
purposes
of
the
Taking
Clause
of
the
Fifth
Amendment.

[
51]
This
Court
never
has
squarely
addressed
the
applicability
of
the
protections
of
the
Taking
Clause
of
the
Fifth
Amendment
to
commercial
data
of
the
kind
involved
in
this
case.
In
answering
the
question
now,
we
are
mindful
of
the
basic
axiom
that
"'
interests
.
.
.
are
not
created
by
the
Constitution.
Rather,
they
are
created
and
their
dimensions
are
defined
by
existing
rules
or
understandings
that
stem
from
an
independent
source
such
as
state
law.'"
Webb's
Fabulous
Pharmacies,
Inc.
v.
Beckwith,
449
U.
S.
155,
161
(
1980),
quoting
Board
of
Regents
v.
Roth,
408
U.
S.
564,
577
(
1972).
Monsanto
asserts
that
the
health,
safety,
and
environmental
data
it
has
submitted
to
EPA
are
property
under
Missouri
law,
which
recognizes
trade
secrets,
as
defined
in
º
757,
Comment
b,
of
the
Restatement
of
Torts,
as
property.
See
Reddi­
Wip,
Inc.
v.
Lemay
Valve
Co.,
354
S.
W.
2d
913,
917
(
Mo.
App.
1962);
Harrington
v.
National
Outdoor
Advertising
Co.,
355
Mo.
524,
532,
196
S.
W.
2d
786,
791
(
1946);
Luckett
v.
Orange
Julep
Co.,
271
Mo.
289,
302­
304,
196
S.
W.
740,
743
(
1917).
The
Restatement
defines
a
trade
secret
as
"
any
formula,
pattern,
device
or
compilation
of
information
which
is
used
in
one's
business,
and
which
gives
him
an
opportunity
to
obtain
an
advantage
over
competitors
who
do
not
know
or
use
it."
º
757,
Comment
b.
And
the
parties
have
stipulated
that
much
of
the
information,
research,
and
test
data
that
Monsanto
has
submitted
under
FIFRA
to
EPA
"
contains
or
relates
to
trade
secrets
as
defined
by
the
Restatement
of
Torts."
App.
36.

[
52]
Because
of
the
intangible
nature
of
a
trade
secret,
the
extent
of
the
property
right
therein
is
defined
by
the
extent
to
which
the
owner
of
the
secret
protects
his
interest
from
disclosure
to
others.
See
Harrington,
supra;
Reddi­
Wip,
supra
;
Restatement
of
Torts,
(
supra)
;
see
also
Kewanee
Oil
Co.
v.
Bicron
Corp.,
416
U.
S.
470,
474­
476
(
1974).
Information
that
is
public
knowledge
or
that
is
generally
known
in
an
industry
cannot
be
a
trade
secret.
Restatement
of
Torts,
(
supra)
.
If
an
individual
discloses
his
trade
secret
to
others
who
are
under
no
obligation
to
protect
the
confidentiality
of
the
information,
or
otherwise
publicly
discloses
the
secret,
his
property
right
is
extinguished.
See
Harrington,
supra
;
1
R.
Milgrim,
Trade
Secrets
º
1.01[
2]
(
1983).

[
53]
Trade
secrets
have
many
of
the
characteristics
of
more
tangible
forms
of
property.
A
trade
secret
is
assignable.
See,
e.
g.,
Dr.
Miles
Medical
Co.
v.
John
D.
Park
&
Sons
Co.,
220
U.
S.
373,
401­
402
(
1911);
Painton
&
Co.
v.
Bourns,
Inc.,
442
F.
2d
216,
225
(
CA2
1971).
A
trade
secret
can
form
the
res
of
a
trust,
Restatement
(
Second)
of
Trusts
º
82,
Comment
e
(
1959);
1
A.
Scott,
Law
of
Trusts
º
82.5,
p.
703
(
3d
ed.
1967),
and
it
passes
to
a
trustee
in
bankruptcy.
See
In
re
Uniservices,
Inc.,
517
F.
2d
492,
496­
497
(
CA7
1975).

[
54]
Even
the
manner
in
which
Congress
referred
to
trade
secrets
in
the
legislative
history
of
FIFRA
supports
the
general
perception
of
their
property­
like
nature.
In
discussing
the
1978
amendments
to
FIFRA,
Congress
recognized
that
data
developers
like
Monsanto
have
a
"
proprietary
interest"
in
their
data.
S.
Rep.
No.
95­
334,
at
31.
Further,
Congress
reasoned
that
submitters
of
data
are
"
entitled"
to
"
compensation"
because
they
"
have
legal
ownership
of
the
data."
H.
R.
Conf.
Rep.
No.
95­
1560,
p.
29
(
1978).
*
fn8
This
general
perception
of
trade
secrets
as
property
is
consonant
with
a
notion
of
"
property"
that
extends
beyond
land
and
tangible
goods
and
includes
the
products
of
an
individual's
"
labour
and
invention."
2
W.
Blackstone,
Commentaries
*
405;
see
generally
J.
Locke,
The
Second
Treatise
of
Civil
Government,
ch.
5
(
J.
Gough
ed.
1947).

[
55]
Although
this
Court
never
has
squarely
addressed
the
question
whether
a
person
can
have
a
property
interest
in
a
trade
secret,
which
is
admittedly
intangible,
the
Court
has
found
other
kinds
of
intangible
interests
to
be
property
for
purposes
of
the
Fifth
Amendment's
Taking
Clause.
See,
e.
g.,
Armstrong
v.
United
States,
364
U.
S.
40,
44,
46
(
1960)
(
materialman's
lien
provided
for
under
Maine
law
protected
by
Taking
Clause);
Louisville
Joint
Stock
Land
Bank
v.
Radford,
295
U.
S.
555,
596­
602
(
1935)
(
real
estate
lien
protected);
Lynch
v.
United
States,
292
U.
S.
571,
579
(
1934)
(
valid
contracts
are
property
within
meaning
of
the
Taking
Clause).
That
intangible
property
rights
protected
by
state
law
are
deserving
of
the
protection
of
the
Taking
Clause
has
long
been
implicit
in
the
thinking
of
this
Court:

[
56]
"
It
is
conceivable
that
[
the
term
'
property'
in
the
Taking
Clause]
was
used
in
its
vulgar
and
untechnical
sense
of
the
physical
thing
with
respect
to
which
the
citizen
exercises
rights
recognized
by
law.
On
the
other
hand,
it
may
have
been
employed
in
a
more
accurate
sense
to
denote
the
group
of
rights
inhering
in
the
citizen's
relation
to
the
physical
thing,
as
the
right
to
possess,
use
and
dispose
of
it.
In
point
of
fact,
the
construction
given
the
phrase
has
been
the
latter."
United
States
v.
General
Motors
Corp.,
323
U.
S.
373,
377­
378
(
1945).

[
57]
We
therefore
hold
that
to
the
extent
that
Monsanto
has
an
interest
in
its
health,
safety,
and
environmental
data
cognizable
as
a
trade­
secret
property
right
under
Missouri
law,
that
property
right
is
protected
by
the
Taking
Clause
of
the
Fifth
Amendment.
*
fn9
[
58]
IV
[
59]
Having
determined
that
Monsanto
has
a
property
interest
in
the
data
it
has
submitted
to
EPA,
we
confront
the
difficult
question
whether
a
"
taking"
will
occur
when
EPA
discloses
those
data
or
considers
the
data
in
evaluating
another
application
for
registration.
The
question
of
what
constitutes
a
"
taking"
is
one
with
which
this
Court
has
wrestled
on
many
occasions.
It
has
never
been
the
rule
that
only
governmental
acquisition
or
destruction
of
the
property
of
an
individual
constitutes
a
taking,
for
[
60]
"
courts
have
held
that
the
deprivation
of
the
former
owner
rather
than
the
accretion
of
a
right
or
interest
to
the
sovereign
constitutes
the
taking.
Governmental
action
short
of
acquisition
of
title
or
occupancy
has
been
held,
if
its
effects
are
so
complete
as
to
deprive
the
owner
of
all
or
most
of
his
interest
in
the
subject
matter,
to
amount
to
a
taking."
United
States
v.
General
Motors
Corp.,
323
U.
S.,
at
378.

[
61]
See
also
PruneYard
Shopping
Center
v.
Robins,
447
U.
S.
74
(
1980);
Pennsylvania
Coal
Co.
v.
Mahon,
260
U.
S.
393,
415
(
1922).
[
62]
As
has
been
admitted
on
numerous
occasions,
"
this
Court
has
generally
'
been
unable
to
develop
any
"
set
formula"
for
determining
when
"
Justice
and
fairness"
require
that
economic
injuries
caused
by
public
action'"
must
be
deemed
a
compensable
taking.
Kaiser
Aetna
v.
United
States,
444
U.
S.
164,
175
(
1979),
quoting
Penn
Central
Transportation
Co.
v.
New
York
City,
438
U.
S.
104,
124
(
1978);
accord,
Hodel
v.
Virginia
Surface
Mining
&
Reclamation
Assn.,
Inc.,
452
U.
S.
264,
295
(
1981).
The
inquiry
into
whether
a
taking
has
occurred
is
essentially
an
"
ad
hoc,
factual"
inquiry.
Kaiser
Aetna,
444
U.
S.,
at
175.
The
Court,
however,
has
identified
several
factors
that
should
be
taken
into
account
when
determining
whether
a
governmental
action
has
gone
beyond
"
regulation"
and
effects
a
"
taking."
Among
those
factors
are:
"
the
character
of
the
governmental
action,
its
economic
impact,
and
its
interference
with
reasonable
investment­
backed
expectations."
PruneYard
Shopping
Center
v.
Robins,
447
U.
S.,
at
83;
see
Kaiser
Aetna,
444
U.
S.,
at
175;
Penn
Central,
438
U.
S.,
at
124.
It
is
to
the
last
of
these
three
factors
that
we
now
direct
our
attention,
for
we
find
that
the
force
of
this
factor
is
so
overwhelming,
at
least
with
respect
to
certain
of
the
data
submitted
by
Monsanto
to
EPA,
that
it
disposes
of
the
taking
question
regarding
those
data.

[
63]
A
[
64]
A
"
reasonable
investment­
backed
expectation"
must
be
more
than
a
"
unilateral
expectation
or
an
abstract
need."
Webb's
Fabulous
Pharmacies,
449
U.
S.,
at
161.
We
find
that
with
respect
to
any
health,
safety,
and
environmental
data
that
Monsanto
submitted
to
EPA
after
the
effective
date
of
the
1978
FIFRA
amendments
­­
that
is,
on
or
after
October
1,
1978
*
fn10
­­
Monsanto
could
not
have
had
a
reasonable,
investment­
backed
expectation
that
EPA
would
keep
the
data
confidential
beyond
the
limits
prescribed
in
the
amended
statute
itself.
Monsanto
was
on
notice
of
the
manner
in
which
EPA
was
authorized
to
use
and
disclose
any
data
turned
over
to
it
by
an
applicant
for
registration.

[
65]
Thus,
with
respect
to
any
data
submitted
to
EPA
on
or
after
October
1,
1978,
Monsanto
knew
that,
for
a
period
of
10
years
from
the
date
of
submission,
EPA
would
not
consider
those
data
in
evaluating
the
application
of
another
without
Monsanto's
permission.
º
3(
c)(
1)(
D)(
i).
It
was
also
aware,
however,
that
once
the
10­
year
period
had
expired,
EPA
could
use
the
data
without
Monsanto's
permission.
º
º
3(
c)(
1)(
D)(
ii)
and
(
iii).
Monsanto
was
further
aware
that
it
was
entitled
to
an
offer
of
compensation
from
the
subsequent
applicant
only
until
the
end
of
the
15th
year
from
the
date
of
submission.
º
3(
c)(
1)(
D)(
iii).
In
addition,
Monsanto
was
aware
that
information
relating
to
formulae
of
products
could
be
revealed
by
EPA
to
"
any
Federal
agency
consulted
and
be
revealed
at
a
public
hearing
or
in
findings
of
fact"
issued
by
EPA
"
when
necessary
to
carry
out"
EPA's
duties
under
FIFRA.
º
10(
b).
The
statute
also
gave
Monsanto
notice
that
much
of
the
health,
safety,
and
efficacy
data
provided
by
it
could
be
disclosed
to
the
general
public
at
any
time.
º
10(
d).
If,
despite
the
data­
consideration
and
data­
disclosure
provisions
in
the
statute,
Monsanto
chose
to
submit
the
requisite
data
in
order
to
receive
a
registration,
it
can
hardly
argue
that
its
reasonable
investment­
backed
expectations
are
disturbed
when
EPA
acts
to
use
or
disclose
the
data
in
a
manner
that
was
authorized
by
law
at
the
time
of
the
submission.

[
66]
Monsanto
argues
that
the
statute's
requirement
that
a
submitter
give
up
its
property
interest
in
the
data
constitutes
placing
an
unconstitutional
condition
on
the
right
to
a
valuable
Government
benefit.
See
Brief
for
Appellee
29.
But
Monsanto
has
not
challenged
the
ability
of
the
Federal
Government
to
regulate
the
marketing
and
use
of
pesticides.
Nor
could
Monsanto
successfully
make
such
a
challenge,
for
such
restrictions
are
the
burdens
we
all
must
bear
in
exchange
for
"'
the
advantage
of
living
and
doing
business
in
a
civilized
community.'"
Andrus
v.
Allard,
444
U.
S.
51,
67
(
1979),
quoting
Pennsylvania
Coal
Co.
v.
Mahon,
260
U.
S.,
at
422
(
Brandeis,
J.,
Dissenting);
see
Day­
Brite
Lighting,
Inc.
v.
Missouri,
342
U.
S.
421,
424
(
1952).
This
is
particularly
true
in
an
area,
such
as
pesticide
sale
and
use,
that
has
long
been
the
source
of
public
concern
and
the
subject
of
government
regulation.
That
Monsanto
is
willing
to
bear
this
burden
in
exchange
for
the
ability
to
market
pesticides
in
this
country
is
evidenced
by
the
fact
that
it
has
continued
to
expand
its
research
and
development
and
to
submit
data
to
EPA
despite
the
enactment
of
the
1978
amendments
to
FIFRA.
*
fn11
564
F.
Supp.,
at
561.

[
67]
Thus,
as
long
as
Monsanto
is
aware
of
the
conditions
under
which
the
data
are
submitted,
and
the
conditions
are
rationally
related
to
a
legitimate
Government
interest,
a
voluntary
submission
of
data
by
an
applicant
in
exchange
for
the
economic
advantages
of
a
registration
can
hardly
be
called
a
taking.
See
Corn
Products
Refining
Co.
v.
Eddy,
249
U.
S.
427,
431­
432
(
1919)
("
The
right
of
a
manufacturer
to
maintain
secrecy
as
to
his
compounds
and
processes
must
be
held
subject
to
the
right
of
the
State,
in
the
exercise
of
its
police
power
and
in
promotion
of
fair
dealing,
to
require
that
the
nature
of
the
product
be
fairly
set
forth");
see
also
Westinghouse
Electric
Corp.
v.
United
States
Nuclear
Regulatory
Comm'n,
555
F.
2d
82,
95
(
CA3
1977).
[
68]
B
[
69]
Prior
to
the
1972
amendments,
FIFRA
was
silent
with
respect
to
EPA's
authorized
use
and
disclosure
of
data
submitted
to
it
in
connection
with
an
application
for
registration.
Another
statute,
the
Trade
Secrets
Act,
18
U.
S.
C.
º
1905,
however,
arguably
is
relevant.
That
Act
is
a
general
criminal
statute
that
provides
a
penalty
for
any
employee
of
the
United
States
Government
who
discloses,
in
a
manner
not
authorized
by
law,
any
trade­
secret
information
that
is
revealed
to
him
during
the
course
of
his
official
duties.
This
Court
has
determined
that
º
1905
is
more
than
an
"
antileak"
statute
aimed
at
deterring
Government
employees
from
profiting
by
information
they
receive
in
their
official
capacities.
See
Chrysler
Corp.
v.
Brown,
441
U.
S.
281,
298­
301
(
1979).
Rather,
º
1905
also
applies
to
formal
agency
action,
i.
e.,
action
approved
by
the
agency
or
department
head.
Ibid.

[
70]
It
is
true
that,
prior
to
the
1972
amendments,
neither
FIFRA
nor
any
other
provision
of
law
gave
EPA
authority
to
disclose
data
obtained
from
Monsanto.
But
the
Trade
Secrets
Act
is
not
a
guarantee
of
confidentiality
to
submitters
of
data,
and,
absent
an
express
promise,
Monsanto
had
no
reasonable,
investment­
backed
expectation
that
its
information
would
remain
inviolate
in
the
hands
of
EPA.
In
an
industry
that
long
has
been
the
focus
of
great
public
concern
and
significant
government
regulation,
the
possibility
was
substantial
that
the
Federal
Government,
which
had
thus
far
taken
no
position
on
disclosure
of
health,
safety,
and
environmental
data
concerning
pesticides,
upon
focusing
on
the
issue,
would
find
disclosure
to
be
in
the
public
interest.
Thus,
with
respect
to
data
submitted
to
EPA
in
connection
with
an
application
for
registration
prior
to
October
22,
1972,
*
fn12
the
Trade
Secrets
Act
provided
no
basis
for
a
reasonable
investment­
backed
expectation
that
data
submitted
to
EPA
would
remain
confidential.

[
71]
A
fortiori,
the
Trade
Secrets
Act
cannot
be
construed
as
any
sort
of
assurance
against
internal
agency
use
of
submitted
data
during
consideration
of
the
application
of
a
subsequent
applicant
for
registration.
*
fn13
Indeed,
there
is
some
evidence
that
the
practice
of
using
data
submitted
by
one
company
during
consideration
of
the
application
of
a
subsequent
applicant
was
widespread
and
well
known.
*
fn14
Thus,
with
respect
to
any
data
that
Monsanto
submitted
to
EPA
prior
to
the
effective
date
of
the
1972
amendments
to
FIFRA,
we
hold
that
Monsanto
could
not
have
had
a
"
reasonable
investment­
backed
expectation"
that
EPA
would
maintain
those
data
in
strictest
confidence
and
would
use
them
exclusively
for
the
purpose
of
considering
the
Monsanto
application
in
connection
with
which
the
data
were
submitted.

[
72]
C
[
73]
The
situation
may
be
different,
however,
with
respect
to
data
submitted
by
Monsanto
to
EPA
during
the
period
from
October
22,
1972,
through
September
30,
1978.
Under
the
statutory
scheme
then
in
effect,
a
submitter
was
given
an
opportunity
to
protect
its
trade
secrets
from
disclosure
by
designating
them
as
trade
secrets
at
the
time
of
submission.
When
Monsanto
provided
data
to
EPA
during
this
period,
it
was
with
the
understanding,
embodied
in
FIFRA,
that
EPA
was
free
to
use
any
of
the
submitted
data
that
were
not
trade
secrets
in
considering
the
application
of
another,
provided
that
EPA
required
the
subsequent
applicant
to
pay
"
reasonable
compensation"
to
the
original
submitter.
º
3(
c)(
1)(
D),
86
Stat.
979.
But
the
statute
also
gave
Monsanto
explicit
assurance
that
EPA
was
prohibited
from
disclosing
publicly,
or
considering
in
connection
with
the
application
of
another,
any
data
submitted
by
an
applicant
if
both
the
applicant
and
EPA
determined
the
data
to
constitute
trade
secrets.
º
10,
86
Stat.
989.
Thus,
with
respect
to
trade
secrets
submitted
under
the
statutory
regime
in
force
between
the
time
of
the
adoption
of
the
1972
amendments
and
the
adoption
of
the
1978
amendments,
the
Federal
Government
had
explicitly
guaranteed
to
Monsanto
and
other
registration
applicants
an
extensive
measure
of
confidentiality
and
exclusive
use.
This
explicit
governmental
guarantee
formed
the
basis
of
a
reasonable
investment­
backed
expectation.
If
EPA,
consistent
with
the
authority
granted
it
by
the
1978
FIFRA
amendments,
were
now
to
disclose
trade­
secret
data
or
consider
those
data
in
evaluating
the
application
of
a
subsequent
applicant
in
a
manner
not
authorized
by
the
version
of
FIFRA
in
effect
between
1972
and
1978,
EPA's
actions
would
frustrate
Monsanto's
reasonable
investment­
backed
expectation
with
respect
to
its
control
over
the
use
and
dissemination
of
the
data
it
had
submitted.

[
74]
The
right
to
exclude
others
is
generally
"
one
of
the
most
essential
sticks
in
the
bundle
of
rights
that
are
commonly
characterized
as
property."
Kaiser
Aetna,
444
U.
S.,
at
176.
With
respect
to
a
trade
secret,
the
right
to
exclude
others
is
central
to
the
very
definition
of
the
property
interest.
Once
the
data
that
constitute
a
trade
secret
are
disclosed
to
others,
or
others
are
allowed
to
use
those
data,
the
holder
of
the
trade
secret
has
lost
his
property
interest
in
the
data.
*
fn15
That
the
data
retain
usefulness
for
Monsanto
even
after
they
are
disclosed
­­
for
example,
as
bases
from
which
to
develop
new
products
or
refine
old
products,
as
marketing
and
advertising
tools,
or
as
information
necessary
to
obtain
registration
in
foreign
countries
­­
is
irrelevant
to
the
determination
of
the
economic
impact
of
the
EPA
action
on
Monsanto's
property
right.
The
economic
value
of
that
property
right
lies
in
the
competitive
advantage
over
others
that
Monsanto
enjoys
by
virtue
of
its
exclusive
access
to
the
data,
and
disclosure
or
use
by
others
of
the
data
would
destroy
that
competitive
edge.

[
75]
EPA
encourages
us
to
view
the
situation
not
as
a
taking
of
Monsanto's
property
interest
in
the
trade
secrets,
but
as
a
"
pre­
emption"
of
whatever
property
rights
Monsanto
may
have
had
in
those
trade
secrets.
Brief
for
Appellant
27­
28.
The
agency
argues
that
the
proper
functioning
of
the
comprehensive
FIFRA
registration
scheme
depends
upon
its
uniform
application
to
all
data.
Thus,
it
is
said,
the
Supremacy
Clause
dictates
that
the
scheme
not
vary
depending
on
the
property
law
of
the
State
in
which
the
submitter
is
located.
Id.,
at
28.
This
argument
proves
too
much.
If
Congress
can
"
pre­
empt"
state
property
law
in
the
manner
advocated
by
EPA,
then
the
Taking
Clause
has
lost
all
vitality.
This
Court
has
stated
that
a
sovereign,
"
by
ipse
dixit,
may
not
transform
private
property
into
public
property
without
compensation.
.
.
.
This
is
the
very
kind
of
thing
that
the
Taking
Clause
of
the
Fifth
Amendment
was
meant
to
prevent."
Webb's
Fabulous
Pharmacies,
Inc.
v.
Beckwith,
449
U.
S.,
at
164.

[
76]
If
a
negotiation
or
arbitration
pursuant
to
º
3(
c)(
1)(
D)(
ii)
were
to
yield
just
compensation
to
Monsanto
for
the
loss
in
the
market
value
of
its
trade­
secret
data
suffered
because
of
EPA's
consideration
of
the
data
in
connection
with
another
application,
then
Monsanto
would
have
no
claim
against
the
Government
for
a
taking.
Since
no
arbitration
has
yet
occurred
with
respect
to
any
use
of
Monsanto's
data,
any
finding
that
there
has
been
an
actual
taking
would
be
premature.
See
(
infra),
at
1019­
1020.
*
fn16
[
77]
In
summary,
we
hold
that
EPA's
consideration
or
disclosure
of
data
submitted
by
Monsanto
to
the
agency
prior
to
October
22,
1972,
or
after
September
30,
1978,
does
not
effect
a
taking.
We
further
hold
that
EPA
consideration
or
disclosure
of
health,
safety,
and
environmental
data
will
constitute
a
taking
if
Monsanto
submitted
the
data
to
EPA
between
October
22,
1972,
and
September
30,
1978;
*
fn17
the
data
constituted
trade
secrets
under
Missouri
law;
Monsanto
had
designated
the
data
as
trade
secrets
at
the
time
of
its
submission;
the
use
or
disclosure
conflicts
with
the
explicit
assurance
of
confidentiality
or
exclusive
use
contained
in
the
statute
during
that
period;
and
the
operation
of
the
arbitration
provision
does
not
adequately
compensate
for
the
loss
in
market
value
of
the
data
that
Monsanto
suffers
because
of
EPA's
use
or
disclosure
of
the
trade
secrets.

[
78]
V
[
79]
We
must
next
consider
whether
any
taking
of
private
property
that
may
occur
by
operation
of
the
data­
disclosure
and
data­
consideration
provisions
of
FIFRA
is
a
taking
for
a
"
public
use."
We
have
recently
stated
that
the
scope
of
the
"
public
use"
requirement
of
the
Taking
Clause
is
"
coterminous
with
the
scope
of
a
sovereign's
police
powers."
Hawaii
Housing
Authority
v.
Midkiff,
ante,
at
240;
see
Berman
v.
Parker,
348
U.
S.
26,
33
(
1954).
The
role
of
the
courts
in
second­
guessing
the
legislature's
judgment
of
what
constitutes
a
public
use
is
extremely
narrow.
Midkiff,
supra;
Berman,
supra,
at
32.

[
80]
The
District
Court
found
that
EPA's
action
pursuant
to
the
data­
consideration
provisions
of
FIFRA
would
effect
a
taking
for
a
private
use,
rather
than
a
public
use,
because
such
action
benefits
subsequent
applicants
by
forcing
original
submitters
to
share
their
data
with
later
applicants.
564
F.
Supp.,
at
566.
It
is
true
that
the
most
direct
beneficiaries
of
EPA
actions
under
the
data­
consideration
provisions
of
FIFRA
will
be
the
later
applicants
who
will
support
their
applications
by
citation
to
data
submitted
by
Monsanto
or
some
other
original
submitter.
Because
of
the
data­
consideration
provisions,
later
applicants
will
not
have
to
replicate
the
sometimes
intensive
and
complex
research
necessary
to
produce
the
requisite
data.
This
Court,
however,
has
rejected
the
notion
that
a
use
is
a
public
use
only
if
the
property
taken
is
put
to
use
for
the
general
public.
Midkiff,
ante,
at
243­
244;
Rindge
Co.
v.
Los
Angeles,
262
U.
S.
700,
707
(
1923);
Block
v.
Hirsh,
256
U.
S.
135,
155
(
1921).

[
81]
So
long
as
the
taking
has
a
conceivable
public
character,
"
the
means
by
which
it
will
be
attained
is
.
.
.
for
Congress
to
determine."
Berman,
348
U.
S.,
at
33.
Here,
the
public
purpose
behind
the
data­
consideration
provisions
is
clear
from
the
legislative
history.
Congress
believed
that
the
provisions
would
eliminate
costly
duplication
of
research
and
streamline
the
registration
process,
making
new
end­
use
products
available
to
consumers
more
quickly.
Allowing
applicants
for
registration,
upon
payment
of
compensation,
to
use
data
already
accumulated
by
others,
rather
than
forcing
them
to
go
through
the
time­
consuming
process
of
repeating
the
research,
would
eliminate
a
significant
barrier
to
entry
into
the
pesticide
market,
thereby
allowing
greater
competition
among
producers
of
end­
use
products.
S.
Rep.
No.
95­
334,
at
30­
31,
40­
41;
124
Cong.
Rec.
29756­
29757
(
1978)
(
remarks
of
Sen.
Leahy).
Such
a
procompetitive
purpose
is
well
within
the
police
power
of
Congress.
See
Midkiff,
ante,
at
241­
242.
*
fn18
[
82]
Because
the
data­
disclosure
provisions
of
FIFRA
provide
for
disclosure
to
the
general
public,
the
District
Court
did
not
find
that
those
provisions
constituted
a
taking
for
a
private
use.
Instead,
the
court
found
that
the
data­
disclosure
provisions
served
no
use.
It
reasoned
that
because
EPA,
before
registration,
must
determine
that
a
product
is
safe
and
effective,
and
because
the
label
on
a
pesticide,
by
statute,
must
set
forth
the
nature,
contents,
and
purpose
of
the
pesticide,
the
label
provided
the
public
with
all
the
assurance
it
needed
that
the
product
is
safe
and
effective.
564
F.
Supp.,
at
567,
and
n.
4.
It
is
enough
for
us
to
state
that
the
optimum
amount
of
disclosure
to
the
public
is
for
Congress,
not
the
courts,
to
decide,
and
that
the
statute
embodies
Congress'
judgment
on
that
question.
See
123
Cong.
Rec.,
at
25706
(
remarks
of
Sen.
Leahy).
We
further
observe,
however,
that
public
disclosure
can
provide
an
effective
check
on
the
decisionmaking
processes
of
EPA
and
allows
members
of
the
public
to
determine
the
likelihood
of
individualized
risks
peculiar
to
their
use
of
the
product.
See
H.
R.
Rep.
No.
95­
343,
p.
8
(
1977)
(
remarks
of
Douglas
M.
Costle);
S.
Rep.
No.
95­
334,
at
13.

[
83]
We
therefore
hold
that
any
taking
of
private
property
that
may
occur
in
connection
with
EPA's
use
or
disclosure
of
data
submitted
to
it
by
Monsanto
between
October
22,
1972,
and
September
30,
1978,
is
a
taking
for
a
public
use.

[
84]
VI
[
85]
Equitable
relief
is
not
available
to
enjoin
an
alleged
taking
of
private
property
for
a
public
use,
duly
authorized
by
law,
*
fn19
when
a
suit
for
compensation
can
be
brought
against
the
sovereign
subsequent
to
the
taking.
Larson
v.
Domestic
&
Foreign
Commerce
Corp.,
337
U.
S.
682,
697,
n.
18
(
1949).
The
Fifth
Amendment
does
not
require
that
compensation
precede
the
taking.
Hurley
v.
Kincaid,
285
U.
S.
95,
104
(
1932).
Generally,
an
individual
claiming
that
the
United
States
has
taken
his
property
can
seek
just
compensation
under
the
Tucker
Act,
28
U.
S.
C.
º
1491.
*
fn20
United
States
v.
Causby,
328
U.
S.
256,
267
(
1946)
("
If
there
is
a
taking,
the
claim
is
'
founded
upon
the
Constitution'
and
within
the
jurisdiction
of
the
Court
of
Claims
to
hear
and
determine");
Yearsley
v.
Ross
Construction
Co.,
309
U.
S.
18,
21
(
1940).

[
86]
In
this
case,
however,
the
District
Court
enjoined
EPA
action
under
the
data­
consideration
and
data­
disclosure
provisions
of
FIFRA,
finding
that
a
Tucker
Act
remedy
is
not
available
for
any
taking
of
property
that
may
occur
as
a
result
of
the
operation
of
those
provisions.
We
do
not
agree
with
the
District
Court's
assessment
that
no
Tucker
Act
remedy
will
lie
for
whatever
taking
may
occur
due
to
EPA
activity
pursuant
to
FIFRA.

[
87]
In
determining
whether
a
Tucker
Act
remedy
is
available
for
claims
arising
out
of
a
taking
pursuant
to
a
federal
statute,
the
proper
inquiry
is
not
whether
the
statute
"
expresses
an
affirmative
showing
of
congressional
intent
to
permit
recourse
to
a
Tucker
Act
remedy,"
but
"
whether
Congress
has
in
the
withdrawn
the
Tucker
Act
grant
of
jurisdiction
to
the
Court
of
Claims
to
hear
a
suit
involving
the
'
founded
.
.
.
upon
the
Constitution.'"
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.
102,
126
(
1974)
(
emphasis
in
original).

[
88]
Nowhere
in
FIFRA
or
in
its
legislative
history
is
there
Discussion
of
the
interaction
between
FIFRA
and
the
Tucker
Act.
Since
the
Tucker
Act
grants
what
is
now
the
Claims
Court
"
jurisdiction
to
render
judgment
upon
any
claim
against
the
United
States
founded
.
.
.
upon
the
Constitution,"
we
would
have
to
infer
a
withdrawal
of
jurisdiction
with
respect
to
takings
under
FIFRA
from
the
structure
of
the
statute
or
from
its
legislative
history.
A
withdrawal
of
jurisdiction
would
amount
to
a
partial
repeal
of
the
Tucker
Act.
This
Court
has
recognized,
however,
that
"
repeals
by
implication
are
disfavored."
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.,
at
133.
See,
e.
g.,
Amell
v.
United
States,
384
U.
S.
158,
165­
166
(
1966);
Mercantile
National
Bank
v.
Langdeau,
371
U.
S.
555,
565
(
1963);
United
States
v.
Borden
Co.,
308
U.
S.
188,
198­
199
(
1939).

[
89]
Monsanto
argues
that
FIFRA's
provision
that
an
original
submitter
of
data
who
fails
to
participate
in
a
procedure
for
reaching
an
agreement
or
in
an
arbitration
proceeding,
or
fails
to
comply
with
the
terms
of
an
agreement
or
arbitration
decision,
"
shall
forfeit
the
right
to
compensation
for
the
use
of
the
data
in
support
of
the
application,"
º
3(
c)(
1)(
D)(
ii),
indicates
Congress'
intent
that
there
be
no
Tucker
Act
remedy.
But
where
two
statutes
are
"'
capable
of
co­
existence,
it
is
the
duty
of
the
courts,
absent
a
clearly
expressed
congressional
intention
to
the
contrary,
to
regard
each
as
effective.'"
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.,
at
133­
134,
quoting
Morton
v.
Mancari,
417
U.
S.
535,
551
(
1974).
Here,
contrary
to
Monsanto's
claim,
it
is
entirely
possible
for
the
Tucker
Act
and
FIFRA
to
co­
exist.
The
better
interpretation,
therefore,
of
the
FIFRA
language
on
forfeiture,
which
gives
force
to
both
the
Tucker
Act
and
the
FIFRA
provision,
is
to
read
FIFRA
as
implementing
an
exhaustion
requirement
as
a
precondition
to
a
Tucker
Act
claim.
That
is,
FIFRA
does
not
withdraw
the
possibility
of
a
Tucker
Act
remedy,
but
merely
requires
that
a
claimant
first
seek
satisfaction
through
the
statutory
procedure.
Cf.
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.,
at
154­
156
(
viewing
Tucker
Act
remedy
as
covering
any
shortfall
between
statutory
remedy
and
just
compensation).
*
fn21
[
90]
With
respect
to
data
disclosure
to
the
general
public,
FIFRA
provides
for
no
compensation
whatsoever.
Thus,
Monsanto's
argument
that
Congress
intended
the
compensation
scheme
provided
in
FIFRA
to
be
exclusive
has
no
relevance
to
the
data­
disclosure
provisions
of
º
10.

[
91]
Congress
in
FIFRA
did
not
address
the
liability
of
the
Government
to
pay
just
compensation
should
a
taking
occur.
Congress'
failure
specifically
to
mention
or
provide
for
recourse
against
the
Government
may
reflect
a
congressional
belief
that
use
of
data
by
EPA
in
the
ways
authorized
by
FIFRA
effects
no
Fifth
Amendment
taking
or
it
may
reflect
Congress'
assumption
that
the
general
grant
of
jurisdiction
under
the
Tucker
Act
would
provide
the
necessary
remedy
for
any
taking
that
may
occur.
In
any
event,
the
failure
cannot
be
construed
to
reflect
an
unambiguous
intention
to
withdraw
the
Tucker
Act
remedy.
"
or
not
the
United
States
so
intended,"
any
taking
claim
under
FIFRA
is
one
"
founded
.
.
.
upon
the
Constitution,"
and
is
thus
remediable
under
the
Tucker
Act.
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.,
at
126.
Therefore,
where
the
operation
of
the
data­
consideration
and
data­
disclosure
provisions
of
FIFRA
effect
a
taking
of
property
belonging
to
Monsanto,
an
adequate
remedy
for
the
taking
exists
under
the
Tucker
Act.
The
District
Court
erred
in
enjoining
the
taking.

[
92]
VII
[
93]
Because
we
hold
that
the
Tucker
Act
is
available
as
a
remedy
for
any
uncompensated
taking
Monsanto
may
suffer
as
a
result
of
the
operation
of
the
challenged
provisions
of
FIFRA,
we
conclude
that
Monsanto's
challenges
to
the
constitutionality
of
the
arbitration
and
compensation
scheme
are
not
ripe
for
our
resolution.
Because
of
the
availability
of
the
Tucker
Act,
Monsanto's
ability
to
obtain
just
compensation
does
not
depend
solely
on
the
validity
of
the
statutory
compensation
scheme.
The
operation
of
the
arbitration
procedure
affects
only
Monsanto's
ability
to
vindicate
its
statutory
right
to
obtain
compensation
from
a
subsequent
applicant
whose
registration
application
relies
on
data
originally
submitted
by
Monsanto,
not
its
ability
to
vindicate
its
constitutional
right
to
just
compensation.

[
94]
Monsanto
did
not
allege
or
establish
that
it
had
been
injured
by
actual
arbitration
under
the
statute.
While
the
District
Court
acknowledged
that
Monsanto
had
received
several
offers
of
compensation
from
applicants
for
registration,
564
F.
Supp.,
at
561,
it
did
not
find
that
EPA
had
considered
Monsanto's
data
in
considering
another
application.
Further,
Monsanto
and
any
subsequent
applicant
may
negotiate
and
reach
agreement
concerning
an
outstanding
offer.
If
they
do
not
reach
agreement,
then
the
controversy
must
go
to
arbitration.
Only
after
EPA
has
considered
data
submitted
by
Monsanto
in
evaluating
another
application
and
an
arbitrator
has
made
an
award
will
Monsanto's
claims
with
respect
to
the
constitutionality
of
the
arbitration
scheme
become
ripe.
See
Duke
Power
Co.
v.
Carolina
Environmental
Study
Group,
Inc.,
438
U.
S.
59,
81
(
1978);
Regional
Rail
Reorganization
Act
Cases,
419
U.
S.,
at
138.

[
95]
VIII
[
96]
We
find
no
constitutional
infirmity
in
the
challenged
provisions
of
FIFRA.
Operation
of
the
provisions
may
effect
a
taking
with
respect
to
certain
health,
safety,
and
environmental
data
constituting
trade
secrets
under
state
law
and
designated
by
Monsanto
as
trade
secrets
upon
submission
to
EPA
between
October
22,
1972,
and
September
30,
1978.
*
fn22
But
whatever
taking
may
occur
is
one
for
a
public
use,
and
a
Tucker
Act
remedy
is
available
to
provide
Monsanto
with
just
compensation.
Once
a
taking
has
occurred,
the
proper
forum
for
Monsanto's
claim
is
the
Claims
Court.
Monsanto's
challenges
to
the
constitutionality
of
the
arbitration
procedure
are
not
yet
ripe
for
review.
The
judgment
of
the
District
Court
is
therefore
vacated,
and
the
case
is
remanded
for
further
proceedings
consistent
with
this
opinion.

[
97]
It
is
so
ordered.
[
98]
JUSTICE
WHITE
took
no
part
in
the
consideration
or
decision
of
this
case.

[
99]
Justice
O'CONNOR,
Concurring
in
part
and
Dissenting
in
part.

[
100]
I
join
all
of
the
Court's
opinion
except
for
Part
IV­
B
and
the
Court's
Conclusion,
ante,
at
1013,
that
"
EPA's
consideration
or
disclosure
of
data
submitted
by
Monsanto
to
the
agency
prior
to
October
22,
1972
.
.
.
does
not
effect
a
taking."
In
my
view
public
disclosure
of
pre­
1972
data
would
effect
a
taking.
As
to
consideration
of
this
information
within
EPA
in
connection
with
other
license
applications
not
submitted
by
Monsanto,
I
believe
we
should
remand
to
the
District
Court
for
further
factual
findings
concerning
Monsanto's
expectations
regarding
interagency
uses
of
trade
secret
information
prior
to
1972.

[
101]
It
is
important
to
distinguish
at
the
outset
public
disclosure
of
trade
secrets
from
use
of
those
secrets
entirely
within
EPA.
Internal
use
may
undermine
Monsanto's
competitive
position
within
the
United
States,
but
it
leaves
Monsanto's
position
in
foreign
markets
undisturbed.
As
the
Court
notes,
ante,
at
1007,
n.
11,
the
likely
impact
on
foreign
market
position
is
one
that
Monsanto
would
weigh
when
deciding
whether
to
submit
trade
secrets
to
EPA.
Thus
a
submission
of
trade
secrets
to
EPA
that
implicitly
consented
to
further
use
of
the
information
within
the
agency
is
not
necessarily
the
same
as
one
that
implicitly
consented
to
public
disclosure.

[
102]
It
seems
quite
clear
­­
indeed
the
Court
scarcely
disputes
­­
that
public
disclosure
of
trade
secrets
submitted
to
the
Federal
Government
before
1972
was
neither
permitted
by
law,
nor
customary
agency
practice
before
1972,
nor
expected
by
applicants
for
pesticide
registrations.
The
Court
correctly
notes
that
the
Trade
Secrets
Act,
18
U.
S.
C.
º
1905,
flatly
proscribed
such
disclosures.
The
District
Court
expressly
found
that
until
1970
it
was
Government
"
policy
that
the
data
developed
and
submitted
by
companies
such
as
be
maintained
confidentially
by
the
[
administrative
agency]
and
was
not
to
be
disclosed
without
the
permission
of
the
data
submitter."
Monsanto
Co.
v.
Acting
Administrator,
EPA,
564
F.
Supp.
552,
564
(
1983).
Finally,
the
Court,
ante,
at
1009,
n.
14,
quotes
from
a
1972
statement
by
the
National
Agricultural
Chemicals
Association
that
"
registration
information
submitted
to
the
Administrator
has
not
routinely
been
made
available
for
public
inspection."
It
is
hard
to
imagine
how
a
pre­
1972
applicant
for
a
pesticide
license
would
not,
under
these
circumstances,
have
formed
a
very
firm
expectation
that
its
trade
secrets
submitted
in
connection
with
a
pesticide
registration
would
not
be
disclosed
to
the
public.

[
103]
The
Court's
analysis
of
this
question
appears
in
a
single
sentence:
an
"
industry
that
long
has
been
the
focus
of
great
public
concern
and
significant
government
regulation"
can
have
no
reasonable
expectation
that
the
Government
will
not
later
find
public
disclosure
of
trade
secrets
to
be
in
the
public
interest.
Ante,
at
1008.
I
am
frankly
puzzled
to
read
this
statement
in
the
broader
context
of
the
Court's
otherwise
convincing
opinion.
If
the
degree
of
Government
regulation
determines
the
reasonableness
of
an
expectation
of
confidentiality,
Monsanto
had
as
little
reason
to
expect
confidentiality
after
1972
as
before,
since
the
1972
amendments
were
not
deregulatory
in
intent
or
effect.
And
the
Court
entirely
fails
to
explain
why
the
nondisclosure
provision
of
the
1972
Act,
º
10,
86
Stat.
989,
created
any
greater
expectation
of
confidentiality
than
the
Trade
Secrets
Act.
Section
10
prohibited
EPA
from
disclosing
"
trade
secrets
or
commercial
or
financial
information."
No
penalty
for
disclosure
was
prescribed,
unless
disclosure
was
with
the
intent
to
defraud.
The
Trade
Secrets
Act,
18
U.
S.
C.
º
1905,
prohibited
and
still
prohibits
Government
disclosure
of
trade
secrets
and
other
commercial
or
financial
information
revealed
during
the
course
of
official
duties,
on
pain
of
substantial
criminal
sanctions.
The
Court
acknowledges
that
this
prohibition
has
always
extended
to
formal
and
official
agency
action.
Chrysler
Corp.
v.
Brown,
441
U.
S.
281,
298­
301
(
1979).
It
seems
to
me
that
the
criminal
sanctions
in
the
Trade
Secrets
Act
therefore
created
at
least
as
strong
an
expectation
of
privacy
before
1972
as
the
precatory
language
of
º
10
created
after
1972.

[
104]
The
Court's
tacit
analysis
seems
to
be
this:
an
expectation
of
confidentiality
can
be
grounded
only
on
a
statutory
nondisclosure
provision
situated
in
close
physical
proximity,
in
the
pages
of
the
United
States
Code,
to
the
provisions
pursuant
to
which
information
is
submitted
to
the
Government.
For
my
part,
I
see
no
reason
why
Congress
should
not
be
able
to
give
effective
protection
to
all
trade
secrets
submitted
to
the
Federal
Government
by
means
of
a
single,
overarching,
trade
secrets
provision.
We
routinely
assume
that
wrongdoers
are
put
on
notice
of
the
entire
contents
of
the
Code,
though
in
all
likelihood
most
of
them
have
never
owned
a
copy
or
opened
a
single
page
of
it.
It
seems
strange
to
assume,
on
the
other
hand,
that
a
company
like
Monsanto,
well
served
by
lawyers
who
undoubtedly
do
read
the
Code,
could
build
an
expectation
of
privacy
in
pesticide
trade
secrets
only
if
the
assurance
of
confidentiality
appeared
in
Title
7
itself.
[
105]
The
question
of
interagency
use
of
trade
secrets
before
1972
is
more
difficult
because
the
Trade
Secrets
Act
most
likely
does
not
extend
to
such
uses.
The
District
Court
found
that
prior
to
October
1972
only
two
competitors'
registrations
were
granted
on
the
basis
of
data
submitted
by
Monsanto,
and
that
Monsanto
had
no
knowledge
of
either
of
these
registrations
prior
to
their
being
granted.
564
F.
Supp.,
at
564.
The
District
Court
also
found
that
before
1970
it
was
agency
policy
"
that
the
data
developed
and
submitted
by
companies
such
as
could
not
be
used
to
support
the
registration
of
another's
product
without
the
permission
of
the
data
submitter."
Ibid.
This
Court,
however,
concludes
on
the
basis
of
two
cited
fragments
of
evidence
that
"
the
evidence
against
the
District
Court's
finding
seems
overwhelming."
Ante,
at
1010,
n.
14.
The
Court
nevertheless
wisely
declines
to
label
the
District
Court's
findings
of
fact
on
this
matter
clearly
erroneous.
Instead,
the
Court
notes
that
the
"
District
Court
did
not
find
that
the
policy
of
the
Department
[
of
Agriculture]
was
publicly
known
at
the
time
[
before
1970]
or
that
there
was
any
explicit
guarantee
of
exclusive
use."
Ibid.
This
begs
exactly
the
right
question,
but
the
Court
firmly
declines
to
answer
it.
The
Court
simply
states
that
"
there
is
some
evidence
that
the
practice
of
using
data
submitted
by
one
company
during
consideration
of
the
application
of
a
subsequent
applicant
was
widespread
and
well
known."
Ante,
at
1009
(
footnote
omitted).
And
then,
without
more
ado,
the
Court
declares
that
with
respect
to
pre­
1972
data
Monsanto
"
could
not
have
had
a
'
reasonable
investment­
backed
expectation'
that
EPA
would
.
.
.
use
[
the
data]
exclusively
for
the
purpose
of
considering
the
Monsanto
application
in
connection
with
which
the
data
were
submitted."
Ante,
at
1010.

[
106]
If
one
thing
is
quite
clear
it
is
that
the
extent
of
Monsanto's
pre­
1972
expectations,
whether
reasonable
and
investment­
backed
or
otherwise,
is
a
heavily
factual
question.
It
is
fairly
clear
that
the
District
Court
found
that
those
expectations
existed
as
a
matter
of
fact
and
were
reasonable
as
a
matter
of
law.
But
if
the
factual
findings
of
the
District
Court
on
this
precise
question
were
not
as
explicit
as
they
might
have
been,
the
appropriate
Disposition
is
to
remand
to
the
District
Court
for
further
factfinding.
That
is
the
course
I
would
follow
with
respect
to
interagency
use
of
trade
secrets
submitted
by
Monsanto
before
1972.

Opinion
Footnotes
[
107]
*
Briefs
of
amici
curiae
urging
reversal
were
filed
for
the
American
Association
for
the
Advancement
of
Science
et
al.
by
Thomas
O.
McGarity;
for
the
American
Federation
of
Labor
and
Congress
of
Industrial
Organizations
et
al.
by
Marsha
S.
Berzon,
Michael
Rubin,
Laurence
Gold,
Albert
H.
Meyerhoff,
and
J.
Albert
Woll;
for
the
Pesticide
Producers
Association
et
al.
by
David
B.
Weinberg
and
William
R.
Weissman;
and
for
PPG
Industries,
Inc.,
by
Thomas
H.
Truitt,
David
R.
Berz,
and
Jeffrey
F.
Liss.

[
108]
Briefs
of
amici
curiae
urging
affirmance
were
filed
for
Abbott
Laboratories
et
al.
by
Kenneth
W.
Weinstein
and
Lawrence
S.
Ebner;
for
the
American
Chemical
Society
et
al.
by
William
J.
Butler,
Jr.,
and
Arthur
D.
McKey;
for
the
American
Patent
Law
Association,
Inc.,
by
Donald
S.
Chisum;
for
Avco
Corp.
by
Alvin
D.
Shapiro;
for
Sathon,
Inc.,
by
Ralph
E.
Brown
and
Mark
E.
Singer;
for
SDS
Biotech
Corp.
et
al.
by
Harold
Himmelman
and
Cynthia
A.
Lewis;
and
for
Stauffer
Chemical
Co.
by
Lawrence
S.
Ebner,
John
T.
Ronan
III,
and
John
W.
Behan.

[
109]
*
fn1
For
purposes
of
our
Discussion
of
FIFRA,
the
term
"
pesticides"
includes
herbicides,
insecticides,
fungicides,
rodenticides,
and
plant
regulators.
See
º
º
2(
t)
and
(
u)
of
FIFRA,
as
amended,
7
U.
S.
C.
º
º
136(
t)
and
(
u).

[
110]
*
fn2
The
first
federal
legislation
in
this
area
was
the
Insecticide
Act
of
1910,
36
Stat.
331,
which
made
it
unlawful
to
manufacture
and
sell
insecticides
that
were
adulterated
or
misbranded.
In
1947,
the
1910
legislation
was
repealed
and
replaced
with
FIFRA.
61
Stat.
172.

[
111]
Some
States
had
undertaken
to
regulate
pesticide
use
before
there
was
federal
legislation,
and
many
more
continued
to
do
so
after
federal
legislation
was
enacted.
In
1946,
the
Council
of
State
Governments
recommended
for
adoption
a
model
state
statute,
the
Uniform
State
Insecticide,
Fungicide,
and
Rodenticide
Act.
See
S.
Rep.
No.
92­
838,
p.
7
(
1972);
H.
R.
Rep.
No.
313,
80th
Cong.,
1st
Sess.,
3
(
1947).

[
112]
*
fn3
Appellant
here
concedes,
however,
that
as
a
matter
of
practice,
the
Department
of
Agriculture
did
not
publicly
disclose
the
health
and
safety
information.
Brief
for
Appellant
5,
n.
5.
[
113]
*
fn4
Section
3(
c)(
1)(
D),
92
Stat.
820­
822,
7
U.
S.
C.
º
136a(
c)(
1)(
D),
reads
in
relevant
part:

[
114]
"(
i)
With
respect
to
pesticides
containing
active
ingredients
that
are
initially
registered
under
this
Act
after
[
September
30,
1978],
data
submitted
to
support
the
application
for
the
original
registration
of
the
pesticide,
or
an
application
for
an
amendment
adding
any
new
use
to
the
registration
and
that
pertains
solely
to
such
new
use,
shall
not,
without
the
written
permission
of
the
original
data
submitter,
be
considered
by
the
Administrator
to
support
an
application
by
another
person
during
a
period
of
ten
years
following
the
date
the
Administrator
first
registers
the
pesticide
.
.
.
;

[
115]
"(
ii)
except
as
otherwise
provided
in
subparagraph
(
D)(
i)
of
this
paragraph,
with
respect
to
data
submitted
after
December
31,
1969,
by
an
applicant
or
registrant
to
support
an
application
for
registration,
experimental
use
permit,
or
amendment
adding
a
new
use
to
an
existing
registration,
to
support
or
maintain
in
effect
an
existing
registration,
or
for
reregistration,
the
Administrator
may,
without
the
permission
of
the
original
data
submitter,
consider
any
such
item
of
data
in
support
of
an
application
by
any
other
person
.
.
.
within
the
fifteen­
year
period
following
the
date
the
data
were
originally
submitted
only
if
the
applicant
has
made
an
offer
to
compensate
the
original
data
submitter
and
submitted
such
offer
to
the
Administrator
accompanied
by
evidence
of
delivery
to
the
original
data
submitter
of
the
offer.
The
terms
and
amount
of
compensation
may
be
fixed
by
agreement
between
the
original
data
submitter
and
the
applicant,
or,
failing
such
agreement,
binding
arbitration
under
this
subparagraph.
If,
at
the
end
of
ninety
days
after
the
date
of
delivery
to
the
original
data
submitter
of
the
offer
to
compensate,
the
original
data
submitter
and
the
applicant
have
neither
agreed
on
the
amount
and
terms
of
compensation
nor
on
a
procedure
for
reaching
an
agreement
on
the
amount
and
terms
of
compensation,
either
person
may
initiate
binding
arbitration
proceedings
by
requesting
the
Federal
Mediation
and
Conciliation
Service
to
appoint
an
arbitrator
from
the
roster
of
arbitrators
maintained
by
such
Service.
.
.
.
findings
and
determination
of
the
arbitrator
shall
be
final
and
conclusive,
and
no
official
or
court
of
the
United
States
shall
have
power
or
jurisdiction
to
review
any
such
findings
and
determination,
except
for
fraud,
misrepresentation,
or
other
misconduct
by
one
of
the
parties
to
the
arbitration
or
the
arbitrator
where
there
is
a
verified
complaint
with
supporting
affidavits
attesting
to
specific
instances
of
such
fraud,
misrepresentation,
or
other
misconduct.
.
.
.
If
the
Administrator
determines
that
an
original
data
submitter
has
failed
to
participate
in
a
procedure
for
reaching
an
agreement
or
in
an
arbitration
proceeding
as
required
by
this
subparagraph,
or
failed
to
comply
with
the
terms
of
an
agreement
or
arbitration
decision
concerning
compensation
under
this
subparagraph,
the
original
data
submitter
shall
forfeit
the
right
to
compensation
for
the
use
of
the
data
in
support
of
the
application.
.
.
.
Registration
action
by
the
Administrator
shall
not
be
delayed
pending
the
fixing
of
compensation;

[
116]
"(
iii)
after
expiration
of
any
period
of
exclusive
use
and
any
period
for
which
compensation
is
required
for
the
use
of
an
item
of
data
under
subparagraphs
(
D)(
i)
and
(
D)(
ii)
of
this
paragraph,
the
Administrator
may
consider
such
item
of
data
in
support
of
an
application
by
any
other
applicant
without
the
permission
of
the
original
data
submitter
and
without
an
offer
having
been
received
to
compensate
the
original
data
submitter
for
the
use
of
such
item
of
data."

[
117]
*
fn5
Section
10(
d),
92
Stat.
830,
reads
in
relevant
part:

[
118]
"(
1)
All
information
concerning
the
objectives,
methodology,
results,
or
significance
of
any
test
or
experiment
performed
on
or
with
a
registered
or
previously
registered
pesticide
or
its
separate
ingredients,
impurities,
or
degradation
products
and
any
information
concerning
the
effects
of
such
pesticide
on
any
organism
or
the
behavior
of
such
pesticide
in
the
environment,
including,
but
not
limited
to,
data
on
safety
to
fish
and
wildlife,
humans,
and
other
mammals,
plants,
animals,
and
soil,
and
studies
on
persistence,
translocation
and
fate
in
the
environment,
and
metabolism,
shall
be
available
for
disclosure
to
the
public:
Provided,
That
the
use
of
such
data
for
any
registration
purpose
shall
be
governed
by
section
3
of
this
Act:
Provided
further,
That
this
paragraph
does
not
authorize
the
disclosure
of
any
information
that
­­

[
119]
"(
A)
discloses
manufacturing
or
quality
control
processes,

[
120]
"(
B)
discloses
the
details
of
any
methods
for
testing,
detecting,
or
measuring
the
quantity
of
any
deliberately
added
inert
ingredients
of
a
pesticide,
or
[
121]
"(
C)
discloses
the
identity
or
percentage
quantity
of
any
deliberately
added
inert
ingredient
of
a
pesticide,
unless
the
Administrator
has
first
determined
that
disclosure
is
necessary
to
protect
against
an
unreasonable
risk
of
injury
to
health
or
the
environment.

[
122]
"(
2)
Information
concerning
production,
distribution,
sale,
or
inventories
of
a
pesticide
that
is
otherwise
entitled
to
confidential
treatment
under
subsection
(
b)
of
this
section
may
be
publicly
disclosed
in
connection
with
a
public
proceeding
to
determine
whether
a
pesticide,
or
any
ingredient
of
a
pesticide,
causes
unreasonable
adverse
effects
on
health
or
the
environment,
if
the
Administrator
determines
that
such
disclosure
is
necessary
in
the
public
interest."

[
123]
*
fn6
A
study
by
the
Office
of
Pesticide
Programs
of
the
EPA
showed
that
in
1977
approximately
400
firms
were
registered
to
produce
manufacturing­
use
products.
S.
Rep.
No.
95­
334,
p.
34
(
1977).
It
was
estimated
that
the
10
largest
firms
account
for
75%
of
this
country's
pesticide
production.
Id.,
at
60.
A
correspondingly
small
number
of
new
pesticides
are
marketed
each
year.
In
1974,
only
10
new
pesticides
were
introduced.
See
Goring,
The
Costs
of
Commercializing
Pesticides,
International
Conference
of
Entomology,
Aug.
20,
1976,
reprinted
in
Hearings
on
Extension
of
the
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
before
the
Subcommittee
on
Agricultural
Research
and
General
Legislation
of
the
Senate
Committee
on
Agriculture,
Nutrition,
and
Forestry,
95th
Cong.,
1st
Sess.,
250,
254
(
1977).

[
124]
*
fn7
The
District
Court's
judgment
in
this
case
is
in
conflict
with
the
holdings
of
other
federal
courts.
See,
e.
g.,
Petrolite
Corp.
v.
United
States
Environmental
Protection
Agency,
519
F.
Supp.
966
(
DC
1981);
Mobay
Chemical
Corp.
v.
Costle,
517
F.
Supp.
252,
and
517
F.
Supp.
254
(
WD
Pa.
1981),
aff'd
sub
nom.
Mobay
Chemical
Co.
v.
Gorsuch,
682
F.
2d
419
(
CA3),
cert.
denied,
459
U.
S.
988
(
1982);
Chevron
Chemical
Co.
v.
Costle,
499
F.
Supp.
732
(
Del.
1980),
aff'd,
641
F.
2d
104
(
CA3),
cert.
denied,
452
U.
S.
961
(
1981).

[
125]
*
fn8
Of
course,
it
was
not
necessary
that
Congress
recognize
the
data
at
issue
here
as
property
in
order
for
the
data
to
be
protected
by
the
Taking
Clause.
We
mention
the
legislative
history
merely
as
one
more
illustration
of
the
general
perception
of
the
property­
like
nature
of
trade
secrets.
[
126]
*
fn9
Contrary
to
EPA's
contention,
Brief
for
Appellant
29,
Justice
Holmes'
dictum
in
E.
I.
du
Pont
de
Nemours
Powder
Co.
v.
Masland,
244
U.
S.
100
(
1917),
does
not
undermine
our
holding
that
a
trade
secret
is
property
protected
by
the
Fifth
Amendment
Taking
Clause.
Masland
arose
from
a
dispute
about
the
disclosure
of
trade
secrets
during
preparation
for
a
trial.
In
his
opinion
for
the
Court,
the
Justice
stated:

[
127]
"
The
case
has
been
considered
as
presenting
a
conflict
between
a
right
of
property
and
a
right
to
make
a
full
defence,
and
it
is
said
that
if
the
disclosure
is
forbidden
to
one
who
denies
that
there
is
a
trade
secret,
the
merits
of
his
defence
are
adJudged
against
him
before
he
has
a
chance
to
be
heard
or
to
prove
his
case.
We
approach
the
question
somewhat
differently.
The
word
property
as
applied
to
trade­
marks
and
trade
secrets
is
an
unanalyzed
expression
of
certain
secondary
consequences
of
the
primary
fact
that
the
law
makes
some
rudimentary
requirements
of
good
faith.
Whether
the
plaintiffs
have
any
valuable
secret
or
not
the
defendant
knows
the
facts,
whatever
they
are,
through
a
special
confidence
that
he
accepted.
The
property
may
be
denied
but
the
confidence
cannot
be.
Therefore
the
starting
point
for
the
present
matter
is
not
property
or
due
process
of
law,
but
that
the
defendant
stood
in
confidential
relations
with
the
plaintiffs."
Id.,
at
102.

[
128]
Justice
Holmes
did
not
deny
the
existence
of
a
property
interest;
he
simply
deemed
determination
of
the
existence
of
that
interest
irrelevant
to
resolution
of
the
case.
In
a
case
decided
prior
to
Masland,
the
Court
had
spoken
of
trade
secrets
in
property
terms.
Board
of
Trade
v.
Christie
Grain
&
Stock
Co.,
198
U.
S.
236,
250­
253
(
1905)
(
Holmes,
J.,
for
the
Court).
See
generally
1
R.
Milgrim,
Trade
Secrets
º
1.01[
1]
(
1983).

[
129]
*
fn10
The
Federal
Pesticide
Act
of
1978
was
approved
on
September
30,
1978.
92
Stat.
842.
The
new
data­
consideration
and
data­
disclosure
provisions
applied
with
full
force
to
all
data
submitted
after
that
date.

[
130]
*
fn11
Because
the
market
for
Monsanto's
pesticide
products
is
an
international
one,
Monsanto
could
decide
to
forgo
registration
in
the
United
States
and
sell
a
pesticide
only
in
foreign
markets.
Presumably,
it
will
do
so
in
those
situations
where
it
deems
the
data
to
be
protected
from
disclosure
more
valuable
than
the
right
to
sell
in
the
United
States.

[
131]
*
fn12
The
1972
amendments
to
FIFRA
became
effective
at
the
close
of
the
business
day
on
October
21,
1972.
86
Stat.
998.

[
132]
*
fn13
The
Trade
Secrets
Act
prohibits
a
Government
employee
from
",
,
or
known"
confidential
information
received
in
his
official
capacity.
18
U.
S.
C.
º
1905.
In
considering
the
data
of
one
applicant
in
connection
with
the
application
of
another,
EPA
does
not
violate
any
of
these
prohibitions.

[
133]
*
fn14
The
District
Court
found:
"
During
the
period
that
USDA
administered
FIFRA,
it
was
also
its
policy
that
the
data
developed
and
submitted
by
companies
such
as
could
not
be
used
to
support
the
registration
of
another's
product
without
the
permission
of
the
data
submitter."
Monsanto
Co.
v.
Acting
Administrator,
United
States
Environmental
Protection
Agency,
564
F.
Supp.
552,
564
(
ED
Mo.
1983)
(
emphasis
in
original).
The
District
Court
apparently
based
this
finding
on
the
testimony
of
two
former
Directors
of
the
Pesticide
Regulation
Division,
who
testified
that
they
knew
of
no
instance
in
which
data
submitted
by
one
applicant
were
subsequently
considered
in
evaluating
another
application.
Ibid.

[
134]
This
finding
is
in
marked
conflict
with
the
statement
of
the
National
Agricultural
Chemicals
Association,
presented
before
a
Senate
Subcommittee
in
1972,
which
advocated
that
the
1972
amendments
to
FIFRA
should
contain
an
exclusive­
use
provision:

[
135]
"
Under
the
present
law
registration
information
submitted
to
the
Administrator
has
not
routinely
been
made
available
for
public
inspection.
Such
information
has,
however,
as
a
matter
of
practice
but
without
statutory
authority,
been
considered
by
the
Administrator
to
support
the
registration
of
the
same
or
a
similar
product
by
another
registrant."
Federal
Environmental
Pesticide
Control
Act:
Hearings
before
the
Subcommittee
on
Agricultural
Research
and
General
Legislation
of
the
Senate
Committee
on
Agriculture
and
Forestry,
92d
Cong.,
2d
Sess.,
pt.
2,
p.
245
(
1972).

[
136]
In
addition,
EPA
points
to
the
Department
of
Agriculture's
Interpretation
with
Respect
to
Warning,
Caution
and
Antidote
Statements
Required
to
Appear
on
Labels
of
Economic
Poisons,
27
Fed.
Reg.
2267
(
1962),
which
presents
a
list
of
pesticides
that
would
require
no
additional
toxicological
data
for
registration.
The
clear
implication
from
the
Interpretation
is
that
the
Department
determined
that
the
data
already
submitted
with
respect
to
those
chemicals
would
be
sufficient
for
purposes
of
evaluating
any
future
applications
for
registration
of
those
chemicals.

[
137]
Although
the
evidence
against
the
District
Court's
finding
seems
overwhelming,
we
need
not
determine
that
the
finding
was
clearly
erroneous
in
order
to
find
that
a
submitter
had
no
reasonable
expectation
that
the
Department
or
EPA
would
not
use
the
data
it
had
submitted
when
evaluating
the
application
of
another.
The
District
Court
did
not
find
that
the
policy
of
the
Department
was
publicly
known
at
the
time
or
that
there
was
any
explicit
guarantee
of
exclusive
use.

[
138]
*
fn15
We
emphasize
that
the
value
of
a
trade
secret
lies
in
the
competitive
advantage
it
gives
its
owner
over
competitors.
Thus,
it
is
the
fact
that
operation
of
the
data­
consideration
or
data­
disclosure
provisions
will
allow
a
competitor
to
register
more
easily
its
product
or
to
use
the
disclosed
data
to
improve
its
own
technology
that
may
constitute
a
taking.
If,
however,
a
public
disclosure
of
data
reveals,
for
example,
the
harmful
side
effects
of
the
submitter's
product
and
causes
the
submitter
to
suffer
a
decline
in
the
potential
profits
from
sales
of
the
product,
that
decline
in
profits
stems
from
a
decrease
in
the
value
of
the
pesticide
to
consumers,
rather
than
from
the
destruction
of
an
edge
the
submitter
had
over
its
competitors,
and
cannot
constitute
the
taking
of
a
trade
secret.

[
139]
*
fn16
Because
the
record
contains
no
findings
with
respect
to
the
value
of
the
trade­
secret
data
at
issue
and
because
no
arbitration
proceeding
has
yet
been
held
to
determine
the
amount
of
recovery
to
be
paid
by
a
subsequent
applicant
to
Monsanto,
we
cannot
preclude
the
possibility
that
the
arbitration
award
will
be
sufficient
to
provide
Monsanto
with
just
compensation,
thus
nullifying
any
claim
against
the
Government
for
a
taking
when
EPA
uses
Monsanto's
data
in
considering
another
application.
The
statutory
arbitration
scheme,
of
course,
provides
for
compensation
only
in
cases
where
the
data
are
considered
in
connection
with
a
subsequent
application,
not
in
cases
of
disclosure
of
the
data.

[
140]
*
fn17
While
the
1975
amendments
to
FIFRA
purported
to
carry
backward
the
protections
against
data
consideration
and
data
disclosure
to
submissions
of
data
made
on
or
after
January
1,
1970,
89
Stat.
751,
the
relevant
consideration
for
our
purposes
is
the
nature
of
the
expectations
of
the
submitter
at
the
time
the
data
were
submitted.
We
therefore
do
not
extend
our
ruling
as
to
a
possible
taking
to
data
submitted
prior
to
October
22,
1972.

[
141]
*
fn18
Monsanto
argues
that
EPA
and,
by
implication,
Congress
misapprehended
the
true
"
barriers
to
entry"
in
the
pesticide
industry
and
that
the
challenged
provisions
of
the
law
create,
rather
than
reduce,
barriers
to
entry.
Brief
for
Appellee
35,
n.
48.
Such
economic
arguments
are
better
directed
to
Congress.
The
proper
inquiry
before
this
Court
is
not
whether
the
provisions
in
fact
will
accomplish
their
stated
objectives.
Our
review
is
limited
to
determining
that
the
purpose
is
legitimate
and
that
Congress
rationally
could
have
believed
that
the
provisions
would
promote
that
objective.
Midkiff,
ante,
at
242­
243;
Western
&
Southern
Life
Ins.
Co.
v.
State
Bd.
of
Equalization,
451
U.
S.
648,
671­
672
(
1981).

[
142]
*
fn19
Any
taking
of
private
property
that
would
occur
as
a
result
of
EPA
disclosure
or
consideration
of
data
submitted
by
Monsanto
between
October
22,
1972,
and
September
30,
1978,
is,
of
course,
duly
authorized
by
FIFRA
as
amended
in
1978.

[
143]
*
fn20
The
Tucker
Act,
28
U.
S.
C.
º
1491,
reads,
in
relevant
part:

[
144]
"
The
United
States
Claims
Court
shall
have
jurisdiction
to
render
judgment
upon
any
claim
against
the
United
States
founded
either
upon
the
Constitution,
or
any
Act
of
Congress
or
any
regulation
of
an
executive
department,
or
upon
any
express
or
implied
contract
with
the
United
States,
or
for
liquidated
or
unliquidated
damages
in
cases
not
sounding
in
tort."

[
145]
*
fn21
Exhaustion
of
the
statutory
remedy
is
necessary
to
determine
the
extent
of
the
taking
that
has
occurred.
To
the
extent
that
the
operation
of
the
statute
provides
compensation,
no
taking
has
occurred
and
the
original
submitter
of
data
has
no
claim
against
the
Government.

[
146]
*
fn22
We
emphasize
that
nothing
in
our
opinion
prohibits
EPA's
consideration
or
disclosure,
in
a
manner
authorized
by
FIFRA,
of
data
submitted
to
it
by
Monsanto.
Our
decision
merely
holds
that,
with
respect
to
a
certain
limited
class
of
data
submitted
by
Monsanto
to
EPA,
EPA
actions
under
the
data­
disclosure
and
data­
consideration
provisions
of
the
statute
may
give
Monsanto
a
claim
for
just
compensation.

19840626

1998
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Inc.

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