Morris W. Dorosh Publisher of Agriweek
SEPTEMBER 19 2005
The sky's the limit when it comes to milking the American court
system
The lead lawyer among the three law firms which have billed an estimated $1.8 million to the looney R-CALF outfit is Russell Frye of Washington DC. In all there are four lawyers working the case, all members of a whole community of Washington lawyers who are available 24/7 to cater to such deluded fanatics as make up R-CALF.
On Sept. 9 (09/09) Frye filed a petition with the Ninth Circuit Court of Appeals in San Francisco for a re-hearing of the July appeal which shot down the March 1 decision of backwoods Montana judge Richard Cebull, granting the temporary injunction that delayed Canadian live cattle exports. The request asks that all 11 judges of the Circuit Court hear the USDA appeal all over again from the beginning because of the 'national importance' of the case. The original decision was rendered on July 14 by a panel of three judges, the usual number for cases of this nature. Re-hearings are literally unheard-of except in rare instances when there is a constitutional issue and Supreme Court potential. Against the well-known guidelines any action challenging the competency of USDA to make routine regulatory decisions is laughable.
Yet sillier are the grounds advanced. One of them is that mad cow disease which originated in Canada has cost the U.S. "billions of dollars" in lost exports. In fact the U.S. has no beef to export if it does not import cattle and beef from Canada. Another is that "importation of diseased animals could result in the spread of BSE"; everyone by now knows that mad cow disease cannot be passed from one live animal to another, just as everyone knows that it has never been detected in any animal younger than 30 months. Elsewhere the brief wants the court to uphold the injunction because of USDA's historic responsibility for preventing the entry of "communicable diseases" when in fact BSE is not communicable. In another place the brief contends that the appeal judges "ignored the District Court's finding that USDA had a preconceived intention to allow Canadian imports before the facts were developed."
The request contends that the case is important enough to deserve the attention of the full court because many organizations filed or attempted to file briefs in support of R-CALF at the appeal stage. If the number of interested parties had anything to do with the conduct of legal cases the American judicial system and history would not even resemble today's.
If there is any point in the brief that a court might take seriously, it is a tiny technicality concerning the department's statutory obligation to quantify any risks associated with regulatory decisions. In their appearance before the Ninth Circuit USDA lawyers stated the risk was insignificant. The brief argues that USDA should have explained its criteria for categorizing the risk as such. However that is a very small hook on which to hang a major demand upon the court. The Ninth Circuit, like all American courts, has an unmanageable backlog of pending cases. It will have to consider the precedent if it agrees to re-hear. A Louisiana flood of similar requests would quickly inundate it.
R-CALF is out of gas and desperate and all it will succeed in doing is to keep the pot simmering a while longer. Meanwhile, still waiting in the wings, is Billings judge Cebull, who has not officially ended R-CALF's application for a permanent injunction against all Canadian cattle and beef shipments. A postponement declared on July 20 remains but the case is still technically alive.
