Mont. -- R-CALF USA has filed a 52-page brief (Brief) to urge the 9th U.S. Circuit Court of Appeals (9th Circuit) to remand the organization's litigation against the U.S. Department of Agriculture (USDA) back to the District Court - District of Montana (District Court) where the arguments and evidence contained in its lawsuit would be considered under the legal standards established for judicial review.
This latest action stems from R-CALF USA's litigation against USDA, begun in January 2005, which claimed the agency's Final Rule on "Minimal Risk Regions: Bovine Spongiform Encephalopathy and the Importation of Commodities" (Final Rule) unjustifiably relaxed long-standing import restrictions for countries affected by BSE and was inadequate to protect the U.S. cattle industry from the introduction of BSE from Canada.
The Brief claims that in August 2006, the District Court ruled against R-CALF USA's request for a permanent injunction only because the District Court incorrectly concluded that the 9th Circuit already had resolved the merits of R-CALF USA's entire case. In the District Court's August 2006 ruling against R-CALF USA, the District Court stated its hands had been tied by the 9th Circuit's earlier decision to overturn the preliminary injunction.
The Brief, however, explains that in addition to 1,000 pages of the Administrative Record filed by USDA after the preliminary injunction proceedings, R-CALF USA and USDA each filed approximately 100 pages of additional briefs and hundreds of pages of declarations from USDA officials and outside experts - information that was not available to the 9th Circuit when it overturned the preliminary injunction. Also, that information was not considered by the District Court before it ultimately ruled in USDA's favor in August. R-CALF USA now wants the District Court to consider these additional arguments and evidence not previously considered during the preliminary injunction proceedings.
Among that additional evidence cited in the Brief is the reference to other statements of Congressional intent, official statements from USDA that contradict previous statements made by the agency in support of the Final Rule, as well as empirical evidence (the discovery of BSE in younger Canadian cattle) that flatly contradicts USDA's assumption that any remaining BSE-infected cattle in Canada would be few and would have been exposed to BSE prior to Canada's 1997 ruminant-to ruminant feed ban.
The Brief argues that the 9th Circuit's opinion that the District Court stated it relied upon to rule against R-CALF USA "does not come close to resolving the issues presented by R-CALF USA's complaint.
The 9th Circuit's opinion concluded the Secretary of Agriculture "had a firm basis for determining that the resumption of ruminant imports from Canada would not significantly increase the risk of BSE to the Americanpopulation." However, the Brief states this conclusion does not resolve R-CALF USA's complaint. R-CALF USA claims that USDA had a responsibility to carry out Congress' Animal Health Protection Act, which authorizes the agency to "prevent the introduction into or dissemination within the United States of any pest or disease of livestock." So, states the Brief, whether the Final Rule was in accordance with the law "thus rests on whether the restrictions on Canadian beef and cattle imports eliminated by the Final Rule remain necessary to prevent the introduction or dissemination of BSE into the United States' cattle herd, not whether Canadian imports would significantly increase the risk of BSE to the American population."
The Brief states the three BSE cases in Canadian cattle born years after the Canadian feed ban - detected in 2006 alone - directly contradict USDA's assumption that the Canadian feed ban had been effective to prevent exposure of cattle to BSE. The Brief states these multiple cases of BSE in animals that were exposed to the BSE agent long after Canada enacted its feed ban represent "a key fact affecting the accuracy of USDA's rationale for the Final Rule."
The Brief also states the District Court needs to evaluate the implications of inconsistent statements USDA has made to the courts. The Brief describes how USDA claimed to the courts that the Final Rule presented no risk of BSE from importing pregnant heifers, and then after making this inaccurate claim, the agency promulgated a new rule in 2006 to prohibit the importation of pregnant heifers in order to mitigate that risk.
Finally, the Brief asks the 9th Circuit to direct the District Court to consider all of the evidence and arguments available to it to determine whether USDA has provided a rational explanation for the Final Rule.
To view a copy of the entire brief, visit the "BSE-Litigation" link at www.r-calfusa.com.
R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is a national, non-profit organization and is dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. R-CALF USA represents thousands of U.S. cattle producers on both domestic and international trade and marketing issues. Members are located across 47 states and are primarily cow/calf operators, cattle backgrounders, and/or feedlot owners. R-CALF USA has more than 60 affiliate organizations and various main-street businesses are associate members. For more information, visit www.r-calfusa.com or, call 406-252-2516.