R-CALF: Cattle Producers To Review Options After 9th Circuit Decision
Billings, Mont. – The R-CALF USA Board of Directors will begin to review options available to the organization after Tuesday’s decision by the 9th U.S. Circuit Court of Appeals (9th Circuit) to reject R-CALF USA’s appeal in its litigation against the U.S. Department of Agriculture’s (USDA’s) minimal risk region rule (Final Rule) on imports of cattle from countries affected by bovine spongiform encephalopathy (BSE).
“We are, of course, disappointed in this decision, but we certainly won’t let it deter us from our goal of strengthening our border protections to prevent the introduction of diseases like BSE into the U.S. cattle herd,” said R-CALF USA CEO Bill Bullard. “Our lawsuit reveals the need for Congress to strengthen the Animal Health Protection Act, as the 9th Circuit found that this Act does not currently impose any restrictions on how USDA must respond, if at all, to the risk that BSE will enter the U.S. from foreign countries.”
R-CALF USA appealed this case on the basis that the District Court – District of Montana (District Court) erred by not holding a hearing and not carefully reviewing the merits of all of our arguments and evidence before denying our motion for summary judgment. The 9th Circuit agreed with R-CALF USA that the District Court should have conducted such a review. However, rather than remanding the case back to the District Court as R-CALF USA had requested, the 9th Circuit, instead, decided the merits of the entire case on its own. R-CALF USA believes this decision takes a very limited approach to judicial review, asserting that the only proper role of the court is to look at the decision-making process USDA used, rather than considering the adequacy of the support for USDA’s decision.
“In the 9th Circuit opinion, the court acknowledges that the evidence R-CALF USA submitted, including evidence showing that BSE is more widespread in Canada than USDA assumed, is ‘certainly cause for concern’ and calls into question certain USDA decisions, but concludes these facts do not demonstrate the agency failed to consider relevant factors back in 2004 when the agency wrote the Final Rule,” Bullard explained.
“R-CALF has made no decisions on what our next steps might be,” he continued. “All decisions related to this matter must be approved by our board of directors, which will now consider its options, one of which might include requesting an en banc hearing before the entire panel of 9th Circuit judges.
“R-CALF’s litigation represents a monumental effort on the part of the U.S. cattle industry to achieve adequate protections from the introduction of BSE, a disease that the evidence shows is becoming more widespread in Canada than USDA originally anticipated,” Bullard pointed out. “Also as a result of our litigation, the U.S. cattle industry has achieved protections it would not have otherwise obtained, including a prohibition against the importation of pregnant cows from Canada, a suspension on imports of beef from Canadian cattle older than 30 months of age, and a delay of USDA’s plans to allow imports of Canadian cattle over 30 months (OTM) of age into the United States.
“This is only the beginning,” Bullard emphasized. “We commit to the U.S. cattle industry that we will move forward with an eye toward determining the best strategy to prevent USDA’s OTM Rule (Rule 2) from being implemented.”
“It is disappointing that the 9th Circuit panel felt its role in reviewing USDA’s action was so limited that it could ignore the fact – clearly demonstrated by Canada’s own BSE surveillance in the past two years – that USDA was very mistaken when the agency based its Final Rule on assumptions that Canada’s 1997 feed ban would prevent BSE infection in cattle born after the feed ban,” asserted R-CALF USA President/Region VI Director Max Thornsberry, a Missouri veterinarian. “Canada has now had almost as many BSE cases born after the ban as before, and a number of them born years after USDA assumed Canada’s feed ban would eliminate further BSE exposure.
“Other courts, including another panel of the 9th Circuit, have refused to put ‘blinders’ on when reviewing an agency's assumptions that are now demonstrably wrong,” he concluded
The US doesn't already have BSE?