USDA seeks to stymie R-CALF suit

The U.S. Department of Agriculture on Aug. 21 filed a rarely used Motion for Summary Affirmance (USDA Motion) with the 9th U.S. Circuit Court of Appeals (9th Circuit). The USDA Motion urges the 9th Circuit not to proceed with the previously scheduled briefings and arguments in R-CALF USA's challenge of USDA's Minimal Risk Region Rule (Final Rule), which relaxed long-standing import restrictions for countries with bovine spongiform encephalopathy. At present, Canada is the only country eligible for the relaxed restrictions contained in the Final Rule.

R-CALF USA President and Region V Director Chuck Kiker surmised that USDA does not want the organization's case to be reviewed by the 9th Circuit because the circumstances unfolding in Canada continue to disprove the key assumptions USDA used to defend its Final Rule. Just as one example, Kiker said, USDA did not contemplate the recent discoveries of BSE-infected cattle born three to five years after the 1997 implementation of Canada's feed ban.

"These recent cases of younger Canadian cattle with BSE disprove USDA's key assumption that the Canadian feed ban has been effectively enforced," he said.

Ironically, the USDA Motion contains language acknowledging the earlier detections of BSE in Canadian cattle born "at or near the time of Canada's feed ban" and states, "Moreover, the discovery of infected cows that were born before or shortly after the Canadian feed ban began casts no doubt on the classification of Canada as a 'Minimal Risk' region for BSE." Kiker said that this standard of proof actually reinforces R-CALF USA's position.

"Now that Canada has discovered infected cows born years after its feed ban began, it is clear that Canada should not have been classified as a Minimal Risk Region for BSE," Kiker emphasized.

Another unusual aspect of the USDA Motion is it suggests that the issue in the pending appeal is whether the USDA's Final Rule was arbitrary and capricious--but the District Court--District of Montana (District Court) never reached that issue. R-CALF USA has stated that the issue for its appeal is whether it was proper for the District Court to deny the organization's motion for summary judgment, yet grant USDA's motion for summary judgment, without considering the merits of those motions and the supporting documents, based on the 9th Circuit's ruling that overturned the preliminary injunction issued by the District Court in March 2005.

"This latest action by USDA likely is an effort to discourage R-CALF USA--or any other organization--from ever challenging the agency's decisions by attempting to make it as hard as possible for R-CALF USA to have its day in court," Kiker added.

The USDA Motion asserts that R-CALF USA had presented no new evidence to the District Court after the District Court issued the preliminary injunction in March 2005, an action which blocked USDA's implementation of the Final Rule for about five months. The 9th Circuit reversed the preliminary injunction in July 2005. R-CALF USA maintains that argument is, essentially, incorrect.

"We had filed hundreds of pages of arguments, expert-witness testimony, as well as additional government documents as new evidence with the District Court--that has yet to be reviewed," Kiker explained. "In fact, USDA itself submitted a Supplemental Administrative Record after the preliminary injunction had already been issued, and the agency's own papers in the subsequent Summary Judgment proceedings before the District Court contained numerous new declarations of USDA personnel and outside consultants, as well as new arguments and references."

Note: To View USDA's Motion for Summary Affirmance, visit the "BSE-Litigation" link at www.r-calfusa.com.

Date: 8/23/06

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