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Anonymous
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Official Court Opinion Refutes Johanns' Claim
that Decision Only a Procedural Delay
(Billings, Mont.) – On March 2, 2005, U.S. District Judge Richard F. Cebull granted R-CALF USA's request for a preliminary injunction against the U.S. Department of Agriculture's (USDA's) Final Rule to reopen the Canadian border to live cattle and additional beef products. USDA's Final Rule would have reopened the border today.
In response to the court's decision, Agriculture Secretary Mike Johanns issued an official statement that said the ruling was not a reflection on the substance of the minimal-risk rule, but rather a procedural delay while the judge considers the merits of the case.
However, the court's 30-page Order of Preliminary Injunction and Opinion in this case appears to materially refute Johanns' claim.
"To prevail in our hearing last Wednesday, R-CALF had to demonstrate to the court that our case had a substantial likelihood of success based on the merits of the issues we raised in the complaint we filed on January 10th," explained Bill Bullard, R-CALF USA CEO. "The court found that R-CALF had indeed presented compelling evidence that we likely would succeed on the merits of our claims."
Cebull ordered USDA to temporarily halt its plan to lift the ban on Canadian live cattle and additional beef products after listening to arguments that demonstrated "the introduction of BSE into the U.S. will be irreversible and is sufficient to justify a finding of significant irreparable harm."
In part of his opinion, Cebull wrote:
--(USDA) appears to have applied (an) arbitrary approach to a decision that subjects the entire U.S. beef industry to potentially catastrophic damages.
--The testing…indicates that if Canada were to ship 1.7 million head of cattle a year to the U.S., as it did in 2002 prior to the discovery of BSE in Canada, it is a virtual certainty that Canadian cattle infected with BSE would be imported into the U.S.
--The facts strongly suggest that the USDA, ignoring its statutory mandate to protect the health and welfare of the people of the United States, established its goal of re-opening the border to the importation of live beef from Canada and thereafter attempted to work backwards to support and justify this goal.
--The evidence indicates that Canada has not conducted sufficient testing for BSE to accurately assess the rate of BSE infection in Canada. The discovery of four animals raised in Alberta province stricken with BSE during the past year and a half is inconsistent with the USDA's assertion that the BSE incidence rate in Canada is 'very low' or 'minimal'.
--The USDA's assertion that the Canadian feed ban is effective and has been in place long enough to make the risk of additional cases of BSE insignificant is at odds with the facts and, therefore, arbitrary and capricious.
--The USDA did not consider the mitigation of adverse effects of the Final Rule on small businesses that could have been achieved through a requirement that edible bovine products derived from Canadian cattle or imported from Canada be labeled so that consumers could choose not to purchase those products.
The USDA argues in response to (labeling): 'While labeling provides consumers with additional information, it is neither a food safety nor an animal health measure.' Such a statement is misleading; certainly allowing U.S. consumers to chose whether or not they are willing to accept the (USDA descriptions) 'negligible,' 'very low,' 'highly unlikely' risk posed by the consumption of Canadian beef …relates to food safety. Any labeling should take place immediately upon opening of the Canadian border to allow consumers the opportunity to make an informed choice when purchasing beef. The cost of said labeling would be minimal compared to the risks associated with eating beef of an unknown origin potentially contaminated with BSE.
The USDA's failure to give careful consideration to the benefits and costs of mandatory testing, or at least its failure to explain to the public why these benefits do not justify mandatory testing, in the face of the possibility of irreparable injury from any case of BSE that is not identified is arbitrary and capricious . . ."
Cebull instructed the attorneys for both parties to decide on a mutually acceptable schedule for the final hearing of R-CALF USA's case, and to present that timetable to the court within 10 days. The court will then set a date to determine the fate of USDA's Final Rule.
"Judge Cebull's ruling states the obvious – that we do not know enough about Canada's BSE problem to re-open the border right now," Bullard said. "We will work with USDA to re-open the border when science – not politics – tells us it is safe to do so."
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that Decision Only a Procedural Delay
(Billings, Mont.) – On March 2, 2005, U.S. District Judge Richard F. Cebull granted R-CALF USA's request for a preliminary injunction against the U.S. Department of Agriculture's (USDA's) Final Rule to reopen the Canadian border to live cattle and additional beef products. USDA's Final Rule would have reopened the border today.
In response to the court's decision, Agriculture Secretary Mike Johanns issued an official statement that said the ruling was not a reflection on the substance of the minimal-risk rule, but rather a procedural delay while the judge considers the merits of the case.
However, the court's 30-page Order of Preliminary Injunction and Opinion in this case appears to materially refute Johanns' claim.
"To prevail in our hearing last Wednesday, R-CALF had to demonstrate to the court that our case had a substantial likelihood of success based on the merits of the issues we raised in the complaint we filed on January 10th," explained Bill Bullard, R-CALF USA CEO. "The court found that R-CALF had indeed presented compelling evidence that we likely would succeed on the merits of our claims."
Cebull ordered USDA to temporarily halt its plan to lift the ban on Canadian live cattle and additional beef products after listening to arguments that demonstrated "the introduction of BSE into the U.S. will be irreversible and is sufficient to justify a finding of significant irreparable harm."
In part of his opinion, Cebull wrote:
--(USDA) appears to have applied (an) arbitrary approach to a decision that subjects the entire U.S. beef industry to potentially catastrophic damages.
--The testing…indicates that if Canada were to ship 1.7 million head of cattle a year to the U.S., as it did in 2002 prior to the discovery of BSE in Canada, it is a virtual certainty that Canadian cattle infected with BSE would be imported into the U.S.
--The facts strongly suggest that the USDA, ignoring its statutory mandate to protect the health and welfare of the people of the United States, established its goal of re-opening the border to the importation of live beef from Canada and thereafter attempted to work backwards to support and justify this goal.
--The evidence indicates that Canada has not conducted sufficient testing for BSE to accurately assess the rate of BSE infection in Canada. The discovery of four animals raised in Alberta province stricken with BSE during the past year and a half is inconsistent with the USDA's assertion that the BSE incidence rate in Canada is 'very low' or 'minimal'.
--The USDA's assertion that the Canadian feed ban is effective and has been in place long enough to make the risk of additional cases of BSE insignificant is at odds with the facts and, therefore, arbitrary and capricious.
--The USDA did not consider the mitigation of adverse effects of the Final Rule on small businesses that could have been achieved through a requirement that edible bovine products derived from Canadian cattle or imported from Canada be labeled so that consumers could choose not to purchase those products.
The USDA argues in response to (labeling): 'While labeling provides consumers with additional information, it is neither a food safety nor an animal health measure.' Such a statement is misleading; certainly allowing U.S. consumers to chose whether or not they are willing to accept the (USDA descriptions) 'negligible,' 'very low,' 'highly unlikely' risk posed by the consumption of Canadian beef …relates to food safety. Any labeling should take place immediately upon opening of the Canadian border to allow consumers the opportunity to make an informed choice when purchasing beef. The cost of said labeling would be minimal compared to the risks associated with eating beef of an unknown origin potentially contaminated with BSE.
The USDA's failure to give careful consideration to the benefits and costs of mandatory testing, or at least its failure to explain to the public why these benefits do not justify mandatory testing, in the face of the possibility of irreparable injury from any case of BSE that is not identified is arbitrary and capricious . . ."
Cebull instructed the attorneys for both parties to decide on a mutually acceptable schedule for the final hearing of R-CALF USA's case, and to present that timetable to the court within 10 days. The court will then set a date to determine the fate of USDA's Final Rule.
"Judge Cebull's ruling states the obvious – that we do not know enough about Canada's BSE problem to re-open the border right now," Bullard said. "We will work with USDA to re-open the border when science – not politics – tells us it is safe to do so."
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