R-CALF USA seeks district court hearing on BSE litigation

R-CALF USA, on Jan. 6, filed a motion in U.S. District Court--District of Montana (District Court) to request a hearing before U.S. District Judge Richard F. Cebull in its litigation against the U.S. Department of Agriculture regarding the agency's minimal risk rule (Final Rule) issued in January 2005, which dealt with opening the United States' borders to cattle and beef products from countries affected by bovine spongiform encephalopathy (BSE).

On March 2, 2005, the District Court issued a preliminary injunction, which prevented USDA's Final Rule from being implemented and, in effect, continued a ban on the import of Canadian cattle and certain beef products into the United States. However, USDA appealed that decision, and in July 2005, the 9th U.S. Circuit Court of Appeals (9th Circuit) reversed the preliminary injunction, which reopened the Canadian border to live cattle under 30 months of age and beef from cattle under 30 months of age.

R-CALF USA's position is that the 9th Circuit decision does not limit, or eliminate, the need for oral arguments of the case and a ruling by the District Court on the summary judgment motions filed by both R-CALF USA and USDA.

"In fact," the motion states, "events since the briefing of the summary judgment motions only reinforce the need for this Court to review and vacate USDA's Jan. 4, 2005 Final Rule allowing importation of cattle and beef from Canada."

R-CALF USA's motion explains that the facts in the case had not been fully developed when the 9th Circuit considered only the narrower question of whether R-CALF USA was entitled to a preliminary injunction while the merits of the entire case were still being developed in the District Court.

"Back in July, the 9th Circuit heard only some very limited facts that were presented during the March hearing before Judge Cebull, and since then, even more scientific information has been discovered about BSE, indicating that USDA should be exercising more caution about this risk, not less," explained R-CALF USA President and Co-Founder Leo McDonnell. "We're asking the District Court to resume its consideration of our case, and in our motion we've pointed out the numerous inconsistencies in USDA's actions that warrant a careful, critical review by Judge Cebull."

The motion also points out that the 9th Circuit decision did not address all of the evidence and arguments R-CALF USA has now presented in its challenge against the Final Rule, including the evidence that indicates "USDA's regulation of BSE has been guided by consideration of inappropriate factors rather than sound scientific judgment and a desire to have open trade with Canada and the express financial impact on multinational meatpackers."

The 9th Circuit said that federal agencies generally should be granted "deference" in their decision-making, but in this case, deference to some of USDA's conclusions simply is not warranted (see notes below). Because the 9th Circuit did not address these considerations, R-CALF USA's motion argues the District Court should not feel bound by the 9th Circuit's conclusion that no quantification is needed of the risk of such a major, precedent-setting action as the Final Rule.

The motion also references two recent federal rulemakings that demonstrate USDA is not applying sound scientific judgment to the BSE issue, and the motion points to USDA's recent rule allowing the importation of beef from animals of any age from Japan (Japan Import Rule)--despite the fact Japan has not implemented the minimal preventive measures USDA determined were necessary for imports from countries known to have BSE.

"USDA's assertions underpinning the Japan Import Rule are so inconsistent and contradictory to the assertions it made in the Final Rule that it leaves no doubt that USDA is ignoring science," noted McDonnell. "USDA, and FDA for that matter, have failed to provide--for both the U.S. cattle herd and U.S. beef consumers--adequate protections against the increased risk caused by importing cattle and beef from BSE-afflicted countries, with many of those protection measures being recommended by leading U.S. and international BSE scientists.

"As a result, numerous pathways of BSE infectivity remain, and this has increased, rather than decreased, the United States' risk of BSE, particularly given that we have now resumed imports of cattle and cattle products from countries with an inherently greater risk for BSE," McDonnell continued. "In order to provide multinational meatpackers with cheap foreign supplies, USDA has left the U.S. with some of the least protective BSE mitigation requirements of any developed country, turning the U.S. into a dumping ground for meat and livestock other modern nations have banned.

"The solution is to immediately correct those known deficiencies," he emphasized. "Recently, fast-food giant McDonald's, as well as a group of the world's foremost scientific experts on BSE, all filed formal comments with the Food and Drug Administration (FDA) that back up, with solid scientific research, the message and the position that R-CALF has maintained since the onset of our case."

R-CALF USA Region IX Director James Fudge said that R-CALF USA's motives, from the beginning, have been not only to strengthen our domestic safeguards against BSE, but also to get USDA to implement Mandatory Country-of-Origin Labeling (M-COOL), and force the agency to harmonize global beef-trade practices.

"Our goal has been to work with the agency to these common ends, and avoid litigation if possible," said Fudge. "But in the end, we had to stand up for what was right to ensure the long-term viability of cow-calf producers around the country.

"The ones most affected by USDA and FDA rules always have had the least influence with those running the agencies and making the decisions," Fudge continued. "This court is the only place that has allowed us to be heard and for that we are grateful, regardless of the outcome.

"We hope in the future that USDA will spend as much time and effort responding to the needs of those affected by its rules as the agency has spent defending itself against those they are supposed to represent," Fudge emphasized.

Date:1/24/06