Judge Cebull might have overreacted, judges suggest

SEATTLE (AP)--The Bush administration urged a federal appeals court in Seattle July 13 to reopen the border to Canadian cattle, which were banned in May 2003 when a cow there was found with bovine spongiform encephalopathy or BSE.

Justice Department attorney Mark Stern told a receptive three-judge panel of the 9th U.S. Circuit Court of Appeals that the government's decision lifting the ban would not result in the "infestation in American livestock." He said the move was based on "good science," while the science from U.S. cattle ranchers opposed to it is "without foundation."

Stern was asking the judges to overturn a March ruling of a Montana federal judge who sided with U.S. ranchers who fear dire economic and health consequences from a BSE outbreak in the United States. U.S. District Judge Richard F. Cebull of Billings ruled the U.S. Department of Agriculture's decision to reopen the border "subjects the entire U.S. beef industry to potentially catastrophic damages" and "presents a genuine risk of death for U.S. consumers."

The three judges appeared skeptical of Cebull's ruling, suggesting he went too far.

The courtroom gallery was filled with media and attorneys. A large room where the case was televised was filled with cattle ranchers from Canada and the U.S. wearing cowboy hats and jeans. A member of the Canadian Parliament, James Bezan, also watched the 40-minute hearing, hoping the court would overturn Judge Cebull.

People who eat meat tainted with BSE can contract a degenerative, fatal brain disorder called variant Creutzfeldt-Jakob disease, or vCJD. More than 150 people died from it following a 1986 outbreak in the United Kingdom.

The dispute pits ranchers--whose profits have improved slightly without Canadian competition--and feedlots and packers--which have fewer cows to feed and slaughter without Canadian supplies.

Ranchers, who sued under the Montana-based lobbying group Ranchers-Cattlemen Action Legal Fund United Stockgrowers, said an infected Texas-born cow discovered two weeks ago shows the need for a closed border, to prevent an epidemic.

Russell Frye, the ranchers' attorney, told the judges that the USDA "didn't determine what was an acceptable number of infected cattle to come in."

The three judges suggested Judge Cebull, perhaps, should have given deference to the USDA's decision. Judge A. Wallace Tashima said the law "does invest the secretary of agriculture with a certain amount of discretion" and suggested the lower court's order was just "disagreeing with the secretary."

Judge Connie Callahan agreed with Tashima, saying the USDA is "entitled to some deference. It's their whole job to keep up with the science to make those decisions."

Frye replied that the USDA is "ignoring statutory mandate to protect the health and welfare of the people of the United States."

Some industry watchdogs say the argument is really all about profits, not consumer health. After all, Canadian and U.S. cattle had been crossbreeding for so many years that they are equally at risk, according to The Center for Media and Democracy in Madison, Wis., an advocacy group that has closely followed the issue.

Also, Canada and the United States each test about 1 percent of the herd at slaughter, compared to 25 percent by the European Union and 100 percent in Japan, which has barred both U.S. and Canadian cattle, said Diane Farsetta, a senior researcher at the center whose work supported the 1997 book, "Mad Cow USA: Could the Nightmare Happen Here?"

The situation has U.S. ranchers facing down packers and feedlots. Profits have declined at packers and feedlots, which are paying the higher prices for cattle to process. They say Canada's cattle are safe, and that the ranchers are more interested in monopolizing supplies than protecting the meat-eating public.

The National Meat Association says its members have lost $1.7 billion in revenue because of fewer cows being processed in the U.S., idling some packing houses and prompting layoffs.

Americans' appetite for beef is being supplemented by imports, including Canadian beef that is processed to remove BSE-susceptible parts--brains, bones, eyes and spinal cords--before crossing the border.

The ranchers have found allies among some state leaders--Montana, Connecticut, Nevada, New Mexico, North Dakota and South Dakota oppose reopening the border. Mike McGrath, Montana's attorney general, said the USDA's rule places meat eaters at risk of dying from contaminated food.

Judge Cebull noted that four of 40,000 tested cows in Alberta were found positive, but Stern told the court that the four cows were older than 30 months. Scientists believe younger cows present less risk of spreading BSE, and the USDA has made 30 months the cutoff age for importation.

Stern told the court that no humans in the U.S. or Canada have died from eating an infected cow.

"There is not a single case," he said.

The cases are Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. USDA, 05-35264, and National Meat Association v. USDA, 05-35214.

Date: 7/20/05