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Subject: R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
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Subject: R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
Date: September 9, 2005 at 10:32 am PST
R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
FryøLaw PLLC
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Via Express Delivery
Ms. Cathy Catterson
Clerk of the Court
United States Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
September 7, 2005
Re: Ranchers Cattlemen Action Legal Fund United Stock growers of America v.
U.S. Department of Agriculture, et al., Docket No. 05-35264
Dear Ms. Catterson:
Enclosed for filing please find the original and 50 copies of
AppelleelPlaintiff's Petition for Rehearing, with Suggestion for Rehearing En Banc,
in the above-captioned appeaL. Thank you.
ø~ Russell S. Frye
Counsel for Appellee/Plaintiff
Ranchers Cattlemen Action
Legal Fund United
Stockgrowers of America
cc: Counsel for all parties
No. 05-35264
__________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________________
RANCHERS CATTLEMEN ACTION LEGAL FUND
UNITED STOCKGROWERS OF AMERICA
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE et al.,
Defendants-Appellants,
__________________________________________________
PETITION FOR REHEARING, WITH SUGGESTION FOR
REHEARING EN BANC
__________________________________________________
RUSSELL S. FRYE A. CLIFFORD EDWARDS
FryeLaw PLLC TAYLOR S. COOK
3050 K Street, N.W., Suite 400 Edwards, Frickle, Anner-
Washington, DC 20007-5108 Hughes, Cook & Culver
(202) 572-8267 1601 Lewis Avenue, Suite 206
P.O. Box 20039
WILLIAM L. MILLER Billings, MT 59104
The William Miller Group, PLLC (406) 256-8155
3050 K Street, N.W., Suite 400
Washington, DC 20007-5108
(202) 342-8416
Attorneys for Plaintiff-Appellee
RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and Ninth Circuit Rule 26.1, Plaintiff-
Appellee Ranchers Cattlemen Action Legal Fund United Stockgrowers of
America ("R -CALF") hereby states that it is a non-profit corporation organized
under the laws of the State of Montana. R-CALF has no parent corporation, and
no publicly traded company owns 10 percent or more of the stock of R-CALF.
Dated: September 7,2005 ~t/vv Russell S. Frye
FryeLaw PLLC
3050 K Street, N.W., Suite 400
Z~0007 illiam L. Miller
The William Miller Group, PLLC
3050 K Street, NW, 4th Floor
Washington, DC 20007 .¿~~1 A. Clifforo Edwards
Taylor S. Cook
Edwards, Frickle, Anner-Hughes, Cook & Culver
1601 Lewis Avenue, Suite 206,
Billings, MT 59104
Attorneys for Plaintiff
RACHERS CATTLEMEN ACTION LEGAL
FUND UNITED STOCKGROWERS OF
AMERICA
ii
iii
TABLE OF CONTENTS
RULE 26.1 CORPORATE DISCLOSURE STATEMENT................................... ii
TABLE OF CONTENTS...................................................................................... iii
I. Introduction. .................................................................................................1
II. The decision is inconsistent with other decisions of this Circuit requiring an
agency to justify departures from prior factual and policy determinations.....3
III. The panel erred in imposing a very narrow standard of review of USDA's
action. ...........................................................................................................6
IV. The decision's discussion of USDA's failure meaningfully to assess the risk
of Canadian imports conflicts with Ober v. Whitman and ignores USDA's
own policy statements on risk assessment. ..................................................11
V. The panel improperly substituted its factual conclusions for those of the
District Court, contrary to other decisions of this Circuit. ...........................14
VI. The panel's conclusion on irreparable harm contained errors of fact and
law. . ...........................................................................................................17
FORM 11. CERTIFICATE OF COMPLIANCE PURSUANT TO
CIRCUIT RULES 35-4 AND 40-1 .............................................................21
CERTIFICATE OF SERVICE..............................................................................22
1
I. Introduction.
The panel's decision in this case, reported at 415 F.3d 1078, vacates a
preliminary injunction that was preserving long-standing U.S. import
protections against a dangerous disease, bovine spongiform encephalopathy
("BSE"), or "Mad Cow" disease, that has already cost the U.S. cattle
industry billions of dollars.
In addition, the panel's conclusion that the Secretary of Agriculture
has a vast amount of discretion to allow imports of pest-infested or diseased
animals and animal products, and the panel's proffered findings about the
underlying facts in the case, create a precedent that is highly prejudicial to
the public's right to judicial review of critical decisions affecting U.S.
agriculture and consumers. Moreover, since the statutory authority at issue
here is very similar to other statutes giving the Secretary of Agriculture
responsibility for preventing imports of pests and diseases affecting plants
and unsafe food1, the decision creates a precedent that also could be applied
to limit judicial review of critical USDA actions under those other statutes.
The parties agree that billions of dollars are at stake. Moreover,
because this matter concerns an inevitably fatal disease that has proven
1 See, e.g., Plant Protection Act, 7 U.S.C. § 7711(c)(1); Meat Inspection Act,
21 U.S.C. § 620(g).
2
difficult to control as it spread around the world, this case has important
potential effects on human health, U.S. livestock, and export markets.
Rehearing is appropriate here because the decision is inconsistent with
several other decisions of this Circuit and because it overlooks or misstates a
number of important points of law and fact. Contrary to the admonishments
of other opinions, the panel, while reviewing a preliminary injunction,
attempted a detailed review of facts not even fully developed below nor
presented fully on appeal. Not surprisingly, the panel missed or
misunderstood key aspects of the administrative record. The panel also
considered a statutory interpretation not argued below, and in so-doing
overlooked important indications of congressional intent.
Rehearing en banc is appropriate because this case involves questions
of exceptional importance and because consideration by the full Court is
critical to maintain consistency among the Court's decisions. The
exceptional national importance of the case is described above; it is apparent
as well from the great public interest in the case, reflected in the 11 amicus
curiae briefs, including those of six state attorneys general and a broad
coalition of national consumer groups and state and local agriculture groups
supporting Appellee Ranchers Cattlemen Action Legal Fund United
Stockgrowers of America ("R-CALF").
3
II. The decision is inconsistent with other decisions of this Circuit
requiring an agency to justify departures from prior factual and
policy determinations.
For many years, the U.S. Department of Agriculture ("USDA") has
had a strict policy of prohibiting imports of cattle and beef from any country
where BSE is known to exist. See 70 Fed. Reg. at 462, Excerpts of Record
("ER") at 183. The purpose of this strict prohibition was to minimize the
potential for introduction of BSE into the U.S. cattle herd and the potential
for U.S. beef consumers to be afflicted with the human version of BSE,
variant Creutzfeldt-Jakob disease (vCJD). That policy was applied to
Canada on May 29, 2003, after the discovery of BSE in a native-born
Canadian cow. 68 Fed. Reg. 31,939. Under intense pressure from the
Canadian government and some U.S.-based meat packers, USDA
subsequently authorized imports of Canadian cattle and beef, subject to
some restrictions, in the regulation under review in this case, 70 Fed. Reg.
460 (January 4, 2005) (the "Final Rule").
R-CALF pointed out that USDA repeatedly concluded that banning
imports of cattle and meat from any country where BSE is discovered was
"necessary" because BSE could become established in the United States if
cattle with BSE were imported into United States. See, e.g., 66 Fed. Reg.
52,483 (Oct. 16, 2001), affirmed 67 Fed. Reg. 8181 (Feb. 22, 2002). USDA
4
policy derived from the nature of BSE: "We believe that due to the drastic
consequences of BSE introduction, strict import requirements are justified
to control even very low-probability risks of introducing BSE. In addition,
due to the long incubation period of BSE and the lack of long-term
comprehensive studies of its spread in countries with only a few reported
cases, we cannot accurately estimate the extent of BSE in countries with any
reported cases." 56 Fed. Reg. 63,865, 63,867 (April 30, 1991) (emphasis
added). See also 62 Fed. Reg. 65,747, 65,748 (Dec. 16, 1997) (given the
lack of a vaccine or a test to detect the disease in live animals, banning
imports of cattle and beef is "the most effective means available for ensuring
that BSE does not enter the United States….").
As recently as 2003, an inter-agency working group convened by the
Secretary of Agriculture explained to Congress the critical importance of the
ban on imports, "the primary firewall at the borders," in U.S. efforts to avoid
BSE. PL 107-9 Final Report ("Report to Congress"), SER20. It described
importing "live cattle that are already incubating the disease and then are
slaughtered, rendered, and incorporated into domestic meat and bone meal
that is mistakenly fed to cattle" as one of two "most likely routes of
introduction of BSE into the U.S. national herd." Id. at SER26.
5
USDA failed to meet its special obligation adequately to explain why
it chose to abandon its prior decision to ban imports of cattle and bovine
products from all countries with BSE, once BSE was discovered in Canada.
See California v. FCC, 905 F.2d 1217, 1234 (9th Cir. 1990); Lynch v.
Dawson, 820 F.2d 1014, 1021 (9th Cir. 1987). USDA failed to explain how
the Final Rule is consistent with 7 U.S.C. § 8303(a)(1), given that it
abandons prior policies that prevent "even very low-probability risks of
introducing" BSE into the U.S., now attempting only to "minimize" the risk
of "dissemination" once the disease has entered the country.
The panel failed entirely to address the fact that USDA reversed its
judgment about measures necessary to prevent the introduction of BSE into
the United States without providing adequate justification and without
referencing new information that could justify reversing its position. The
principal device that USDA now claims will provide adequate protection to
U.S. cattle if BSE-infected cattle are imported from Canada, the prohibition
on feeding ruminant protein to other ruminants, has been in place since
1997, ER190, yet, as noted above, USDA has said repeatedly since then that
importation and rendering of BSE-infected cattle, followed by mis-feeding
to U.S. cattle, is one of the primary risks for introduction of BSE into the
United States. The "Harvard Study" on which USDA principally relies for
6
support in its relaxation of BSE protections for Canada, was first completed
in 2001 and relies on scientific studies reported primarily in the 1990s.
ER180-81, 190-91. Clearly, USDA is not now relying on new information
that was unavailable when USDA in recent years repeatedly reaffirmed the
importance of the ban on imports of cattle from BSE-afflicted countries.
Rehearing is justified by the panel's failure to address and apply precedent
requiring an agency to justify its departure from its previous position.
III. The panel erred in imposing a very narrow standard of review of
USDA's action.
In a single page of its opening brief in this appeal, USDA raised an
argument it had not raised at the District Court, claiming that the language
and legislative history of one of the statutory provisions under which the
Final Rule was issued provide no standards by which to measure the
Secretary's exercise of discretion and render the decision to allow imports of
potentially BSE-contaminated cattle and meat virtually exempt from judicial
review. USDA Br. at 20-21. The decision adopts and expands upon this
reasoning. See 415 F.3d at 1094-95.
Numerous cases in this Circuit establish the principal that this Court
must not consider legal arguments on appeal that were not presented to the
District Court. See, e.g., Brown v. City of Tucson, 336 F.3d 1181, 1187 n.11
7
(9th Cir. 2003); Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004)
(refusing to consider legal arguments "which should be addressed by the
district court in the first instance"); United States v. Alisal Water Corp., 370
F.3d 915, 923 (9th Cir. 2004). The panel's failure to follow that precedent
warrants rehearing.
Moreover, without the benefit of the briefing that would have
occurred below had USDA presented this argument in the preliminary
injunction proceeding, the panel understandably misapprehended some
aspects of the legislative history. The panel focused on a discussion of the
definition of "disease" in the Conference Report for the Animal Health
Protection Act, 7 U.S.C. §§ 8301 et seq. (the only reference to the legislative
history in USDA's brief), but overlooked other language in the Conference
Report, emphasizing the very high priority Congress placed on preventing
diseases like BSE2: "Ensuring proper screening and testing, and, where
necessary, the eradication of animal diseases, is of paramount importance to
American Agriculture, USDA, the Congress, and the American people.
With the stakes to animal health and the farm economy so high, the U.S.
government should use the very best methods available to detect animal
2 The quoted language relates to testing for scrapie, a disease related to BSE.
See 70 Fed. Reg. at 461, ER185.
8
diseases." H.R. Conf. Rep. 107-424, reprinted in 2002 U.S.C.C.A.N. 141,
389.
The panel also may not have been aware that the Animal Health
Protection Act, although only enacted in 2002, replaced almost identical
language in a 1962 statute (P.L. 87-518, 76 Stat. 129, sec. 4). Cf. 415 F.3d
at 1094. Far from "indicat[ing] a congressional intent to give the Secretary
wide discretion in dealing with the importation of plant and animal
products" (id.), the legislative history of that 1962 predecessor statute
evidences congressional intent to "provide greater protection against the
introduction and dissemination of diseases of livestock" and to "charge the
Secretary of Agriculture with the general duty and responsibility of
preventing the entry or dissemination of communicable diseases of
livestock…." H.R. Rep. 1516, reprinted in 1962 U.S.C.C.A.N. 1822
(emphasis added); see also id. at 1823, 1825, 1827.3
3 Even the passage from the legislative history that the panel did focus on,
explaining that the Conference Committee wanted to give the Secretary
discretion to define "disease," indicates that the reason for doing so was so
that USDA could be more effective in focusing on real threats of disease,
rather than indicating an intent to give the Secretary discretion to decide to
allow imports of diseased animals that present a risk to U.S. livestock. See
2002 U.S.C.C.A.N. at 389; see also 7 U.S.C. § 8302(1) Moreover, the panel
apparently missed the fact that the AHPA defines the prions believed to
cause BSE as a "pest" rather than a "disease." Id. at § 8302(13)(I).
9
The panel also did not refer to another statute that bears directly on
congressional intent that USDA take steps to reduce, not increase, the risk of
BSE, and fully characterize for the public the risk of BSE and vCJD from
USDA actions. In the Animal Disease Risk Assessment, Prevention, and
Control Act of 2001, PL 107-9, Congress found that the potential
introduction of BSE into the United States would cause "devastating
financial losses to – the agriculture industry and other economic sectors; and
United States trade in the affected animals and animal products." PL 107-9
§ 2(a)(3). One of the express goals of PL 107-9 was "to make certain that
the Congress and the American public are fully informed as to the reliability
of our nation's animal health inspection system, its ability to protect our
domestic herds and the American public from the potential introduction into
the United States of" BSE. 147 Cong. Rec. S3709 (April 6, 2001).
Congress directed the Secretary to provide "recommendations to reduce and
manage the risks of . . . bovine spongiform encephalopathy, and related
diseases." Id. at § 3(b)(2)(B) (emphasis added). These clear statements of
congressional policy are contravened by the panel's conclusion in this case
that USDA need not minimize the risk of BSE from imports nor tell the
public how much risk is associated with imports allowed by the Final Rule.
Cf. 415 F.3d at 1094.
10
The standard of review for actions under the AHPA set out in footnote
15 of the decision, that the action should not be overturned "[a]bsent a
strong showing that the Secretary is not exercising [his 'considerable']
discretion consistent with the statutory requirements," is inconsistent with
other decisions of this Circuit interpreting judicial review under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Under those
decisions, an agency action is arbitrary and capricious or an abuse of
discretion under the APA if, for example, it frustrates a congressional policy
underlying the statute, and not only when it is inconsistent with a specific
statutory directive. See, e.g., Ariz. Cattle Growers' ash'n v. United States
Fish & Wildlife Service, 273 F.3d 1229, 1236 (9th Cir. 2001). An agency
also acts in a way prohibited by the APA if it acts without considering the
appropriate factors or after considering inappropriate ones, id., lacks data to
support its assumptions, Ober v. Whitman, 243 F.3d 1190, 1195 (9th Cir.
2001), fails adequately to explain its assumptions and conclusions,
California v. FCC, 905 F.2d at 1244, or fails to justify its departure from
prior policy decisions, see p. 5, supra.
The standard of review adopted in the decision appears not to allow
for all these other ways in which an action can be found to violate the APA,
focusing solely on the "not in accordance with law" portion of 5 U.S.C. §
11
706(2). This is not merely semantics. The decision dismissed or ignored
numerous findings by the District Court that USDA failed to provide a
reasoned explanation for part of the basis for its conclusions or had provided
an explanation that was internally inconsistent or not supported by the
record. The decision criticizes the District Court for using a "divide and
conquer" approach, analyzing USDA's support for its assertions about each
of the factors it claims will virtually eliminate BSE risk from Canadian
imports, implying that if USDA relies on a number of mitigation measures,
it does not matter if some of those measures were not adequately explained
or supported in rulemaking. See 415 F.3d at 1095. There is no basis for
such an approach in the APA, and in fact it does not even have a factual
basis: some of the mitigation measures address risks to U.S. cattle from live
cattle imports, while others address risks to humans. USDA was obligated
to justify its assumptions about the effectiveness of each of its BSE
mitigation measures.
IV. The decision conflicts with Ober v. Whitman and ignores USDA's
own policy statements on risk assessment.
The decision rejected the District Court's conclusions that USDA had
failed adequately to assess the risk to animal and human health presented by
the Final Rule. See 415 F.3d at 1096-97. The District Court, aided by the
12
declaration of an expert in risk assessment, found that USDA's failure to
attempt to quantify the risk presented by resuming Canadian imports, and
indeed its statement that it had not even determined what level of cattle and
human deaths would be acceptable as a result of the Final Rule, made it
impossible for the public and the reviewing court meaningfully to assess
USDA's policy choices in the Final Rule and its assurances that the risk was
acceptable and "very low." 359 F. Supp.2d at 1065, 1074. The panel
declared that "the AHPA does not require the Secretary to quantify a
permissible level of risk or to conduct a risk assessment." 415 F.3d at 1097.
But, as this Circuit concluded in Ober v. Whitman, 243 F.3d 1190, 1195, an
agency cannot conclude that something presents minimal risk without
describing the standard by which it judges the risk to be minimal.
In Ober, the Environmental Protection Agency had decided to exclude
certain sources of air pollution from a pollution control regulation because
they were "de minimis." This Circuit held that "unless" EPA has "provided
a full explanation of" the levels it considers de minimis, "supported by a
plausible explanation, we have no basis for exercising our responsibility to
determine whether" EPA's judgment that certain pollution sources are de
minimis complies with the APA. Id. The panel's willingness in the instant
case to accept USDA's assurances that the risks associated with the Final
13
Rule are acceptable, where USDA provided no standard for judging the
acceptability of such risks, and where its own experts said it did not yet have
enough information to predict the likelihood of introduction of BSE as a
result of resuming imports, SER317-18, is inconsistent with this Circuit's
insistence that an agency set forth the criteria it applied in judging the
acceptability of the risks of its action.
Additionally, the panel apparently overlooked the fact that preexisting
USDA policies confirm the need for quantitative risk assessments for actions
such as the Final Rule. USDA's own procedures for evaluating whether to
allow imports from a region that potentially carry a pest or disease,
AR009519-29, state that, while a qualitative risk analysis is generally
adequate for regions considered free of certain diseases, regions in which the
disease is known to exist due to recent outbreaks are deemed to pose a
higher level of risk and have historically been approached quantitatively.
AR009525. This is because "[q]uantitative modeling allows assessment of
specific risk concerns, testing of assumptions, analysis of attendant
uncertainty, and evaluation of the effectiveness of proposed mitigation
measures." Id.; accord, SER186-190, 194; SER32. The decision also
contains no recognition that, as noted at p. 9, supra, PL 107-9 demonstrates
congressional intent that the public be fully informed of the risks of BSE and
14
the effectiveness of BSE mitigation measures. In light of these USDA and
congressional pronouncements, the District Court's conclusion that USDA
should have provided more than its assurance that the risk of the Final Rule
is very low certainly was not an abuse of discretion.
V. The panel improperly substituted its factual conclusions for those
of the District Court, contrary to other decisions of this Circuit.
This Circuit has stated repeatedly that, when reviewing the issuance of
a preliminary injunction, the district court's assessment of the likelihood of
success on the merits must be reviewed for abuse of discretion, without
getting into "the underlying merits of the case." Harris v. Bd. of
Supervisors, Los Angeles Cty., 366 F.3d 754, 760 (9th Cir. 2004) (quotations
and citations omitted). The Court "will not second-guess whether the court
correctly applied the law to the facts of the case, which may be largely
undeveloped at the early stages of litigation." Earth Island Inst. v. U.S.
Forest Service, 351 F.3d 1291, 1298 (9th Cir. 2003) (quotations omitted);
see also, e.g., Stuhlbarg Int'l Sales Co. v. John D. Brush and Co., 240 F.3d
832, 839 (9th Cir. 2001).
In the instant case, however, that is precisely what the panel did. It
delved deeply into the merits of the case, substituting its judgment for the
District Court's on a variety of issues and concluding that "the risks inherent
15
in the Final Rule are small" and that it "likely is supported by an adequate
administrative record." 415 F.3d at 1100. The decision's failure to follow
extensive precedent in this Circuit about the appropriate scope of appellate
review of a preliminary injunction warrants rehearing.4
Not surprisingly, when the panel attempted to apply the law to the
facts in the context of a preliminary injunction appeal, it missed or misstated
numerous key facts.5 The panel did not even address directly a critical
factual finding by the District Court, that USDA management entered the
rulemaking with a preconceived notion that it was important to reopen trade
with Canada as soon as possible, before having evaluated the risks and
impacts of doing so, and thereafter attempted to develop a justification for
4 The decision claims that the District Court erroneously concluded that the
AHPA requires USDA to eliminate all risk of BSE from imports, and this
illegal error infected the District Court's review of the facts. 415 F.3d at
1094-95. This is a "straw man" argument, though-- the decision recognizes
that the District Court never said that USDA was required to assure that
Canadian imports present no additional risk of BSE. Id. at n.14; see also
Transcript of preliminary injunction hearing at, e.g., SER289-91 Rather,
the District Court appropriately evaluated the likelihood that R-CALF could
show USDA's conclusions that the BSE risk was "virtually eliminated" by
various mitigation measures in the Final Rule were not adequately
supported. This is not "imposing...a 'zero-risk' requirement" (id.), it is
applying the APA requirement that USDA have a factual basis for its
assertions that there is little or no risk from the circumstances allowed under
the Final Rule. See, e.g., 359 F. Supp.2d at 1068.
5 The panel even did its own analysis of Switzerland's BSE experience not
presented in the briefs or, apparently, the record. See 415 F.2d at 1097.
16
this policy decision. R-CALF provided numerous examples of statements
by USDA management about the need to move quickly to resume trade in
cattle and beef with Canada in advance of an assessment of the risks of
doing so (or before the facts of additional cases of BSE discovered in
Canada had been determined), as well as a report of USDA's Inspector
General that supported the same conclusion (SER220-25). Thus, there was
clear support for the District Court's factual conclusion that:
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.
359 F. Supp.2d at 1066; see also id. at 1074 (USDA "evidenced a
preconceived intention, based upon inappropriate considerations, to rush to
reopen the border….").
The decision on appeal does not contradict the District Court's factual
conclusions about USDA's preconceived intention to resume trade with
Canada, much less show that those conclusions were clearly erroneous. Cf.
Actors Equity ash'n v. Am. Dinner Theater Inst., 802 F.2d 1038, 1042 (8th
Cir. 1986). Those factual conclusions justify not applying the presumption
of deference to USDA decisions concerning imports from Canada. See, e.g.,
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059
17
(9th Cir. 2004) (improprieties in process overcame presumption that
administrative record was complete); Entergy Ark., Inc. v. Nebraska, 210
F.3d 887 (8th Cir. 2000) (where state reached political conclusion before
facts were available, no deference given to its factual conclusions); Motor
Vehicle Mfrs. ash'n v. State Farm Mutual, 463 U.S. 29, 52-56 (1983) (no
deference when agency emphasized cost of automatic seatbelts in contrast to
congressional intent that passenger safety be primary concern). The
decision's failure to abide by the uncontroverted factual findings of the
District Court warrants rehearing.
VI. The panel's conclusion on irreparable harm contained errors of
fact and law.
The decision states "we disagree with the district court's assessment
of the irreparable harm threatened by the Final Rule" and says the District
Court's concern about the threatened harm "appears to be overstated." 415
F.3d at 1093, 1105. But a district court's findings in preliminary injunction
proceedings may only be overturned if the reviewing court finds an abuse of
discretion, not just because the panel "disagrees with" the District Court's
assessment of the harms. This is the kind of second-guessing of the district
court's findings that this Circuit has rejected many times. See, e.g., Rucker
v. Davis, 237 F.3d 1113, 1118 (2001) (en banc).
18
The panel also missed important aspects of the substantial irreparable
harm that the preliminary injunction addressed. Cf. 415 F.3d at 1104-1105.
It ignored the fact that USDA estimated that the Final Rule would cost U.S.
cattle producers, mostly small businesses, close to $3 billion dollars. 70
Fed. Reg. at 539, 543, ER263, 267.
The panel apparently also missed the fact that the "stigma" damages
to which the District Court referred were not just damages to "American
demand for beef." 415 F.3d at 1105. The District Court was aware that fears
about the safety of beef from the U.S. after the discovery of a single BSEinfected
cow (born in Canada) in the United States caused most countries to
ban imports of U.S. beef, costing the cattle industry billions of dollars (359
F. Supp.2d at 1061, 1073) and that the earlier discovery of BSE in Canada
led Japan to demand that all beef from the U.S. be raised and slaughtered in
the U.S. ER248. The District Court thus rationally concluded that
importing cattle from Canada (which identified four cases of BSE in less
than two years) presented a risk of significant irreparable harm to U.S.
exports of beef.
Thus, not only did the panel not make the requisite finding that the
District Court's assessment of irreparable harm from cost to U.S. producers
and impact on foreign demand was clearly erroneous, it could not have. 6
Dated: September 7, 2005
Respectfully submitted,
~~ Russell S. Frye
FryeLaw PLLC
3050 K Street, N. W., Suite 400
Washington, DC 20007 ~8267
William L. Miller
The William Miller Group, PLLC
3050 K Street, NW
Fourth Floor
Washington, DC 20007
(202) 342-8416 tl~~¥- A. Cliffor dwards /
Taylor S. Cook
Edwards, Frickle, Anner-Hughes, Cook &
Culver
1601 Lewis Avenue, Suite 206,
6 In contrast, the alleged harm from the preliminary injunction actually arises
from circumstances that predate the Preliminary Injunction by almost two
years, see Stuhlbarg, 240 F~3d at 841, and involves less than 1 % of the U.S.
cattle herd, cf ER91 with SER160.
19
20
P.O. Box 20039
Billings, MT 59104
(406) 256-8155
Attorneys for Plaintiff
RANCHERS CATTLEMEN ACTION
LEGAL FUND UNITED
STOCKGROWERS OF AMERICA
Form 11. Certificate of Compliance Pursuant to
Circuit Rules 35-4 and 40-1
Form Must be Signed by Attorney or Unrepresented Litigant
and Attached to the Back of Each Copy of the Petition or Answer
(signature block below)
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for
panel rehearing/petition for rehearing en banc/answer is: (check applicable
option)
_X_Proportionately spaced, has a typeface of 14 points or more and
contains 4199 words (petitions and answers must not exceed 4,200 words).
or
- Monospaced, has 10.5 or fewer characters per inch and contains
words or lines of text (petitions and answers must not
exceed 4,200 words or 390 lines of text).
or
- In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.
(New Form 7/1/2000)
21
22
CERTIFICATE OF SERVICE
I hereby certify that, on the 7th day of September 2005, I have caused a copy
of the foregoing Petition for Rehearing, with Suggestion for Rehearing En Banc, to
be served by placing it in the U.S. mail or consigning it to an express delivery
service, addressed to:
Mark B. Stern
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Room 7256
Washington, DC 20530
Attorney for Defendants/Appellees
Christian D. Tweeten
Chief Civil Council
Department of Justice
P.O. Box 201401
Helena, MT 59620
Attorney for amici curiae States of Montana, Connecticut, Nevada,
New Mexico, North Dakota, and South Dakota
David A. Domina
Domina Law, pc llo
2425 S 144th St
Omaha, NE 68144
Attorney for amici curiae 67 National, State, and Local Consumer
Research Groups, Public Interest Organizations, Farm and Ranch
Organizations, and Local Private Organizations
Maureen E. Mahoney
Latham & Watkins, LLP
23
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004-1304
Attorney for amicus curiae Government of Canada
Gregory G. Garre
Hogan & Hartson, LLP
555 Thirteenth Street, NW
Washington, DC 20004
Attorney for amici curiae National Cattlemen's Beef
Association, American Farm Bureau Federation,
National Pork Producers Council, 29 State Cattlemen's
Associations, 18 State Farm Bureaus, and 9 Individual
Cattle Producers
Sarah Weinstein
Mayer, Brown, Rowe & Maw, LLP
Two Palo Alto Square
Suite 300,
3000 El Camino Real
Palo Alto, CA 94306-2112
Attorney for amicus curiae Alberta Beef Producers
Michael B. Gillett
McElroy Law Firm, PLLC
Two Union Square
601 Union Street, Suite 1606
Seattle, WA 98101
Attorney for amicus curiae Easterday Ranches, Inc.
Joseph O. Click
Blank Rome, LLP
Watergate, Eleventh Floor
600 New Hampshire Avenue, NW
Washington, DC 20037
Attorney for amici curiae Canadian Cattlemen's Association
and Its Affiliated Organizations
Jonathan L. Abram
Hogan & Hartson, LLP
555 Thirteenth Street, NW
Washington, DC 20004
Attorney for amici curiae American Meat Association,
North American Meat Processors, Southwestern Meat Association,
Eastern Meat Packers Association, American Association of
Meat Processors, National Restaurant Association, and United Food and
Commercial Workers
John O'Brien
Kerr, Brosseau, Bartlett, O'Brien, LLC
Suite 1600
1600 Broadway
Denver, CO 80202
Attorney for amicus curiae Pioneer, Inc.
Gregg Spyridon
Spyridon, Koch, Palermo & Dornan, LLC
Suite 3010
Three Lakeway Center
3838 N. Causeway Blvd.
Metairie, LA 70002
Attorney for amici curiae the Came lid Alliance, et al.
Alan Charles Raul
Sidley Austin Brown & Wood, LLP
1501 K Street, N.W.
Washington, DC 20005
Attorney for amicus curiae Tyson Foods, Inc. ~ . ~~
Russell S. Frye
24
http://www.r-calfusa.com/BSE/USDA%20Appeal%20Petition%20for%20Rehearing.pdf
Docket No. 03-080-1 -- USDA ISSUES PROPOSED RULE TO ALLOW LIVE ANIMAL
IMPORTS FROM CANADA
https://web01.aphis.usda.gov/BSEcom.nsf/0/b78ba677e2b0c12185256dd300649f9d?OpenDocument&AutoFramed
Subject: Importation of Whole Cuts of Boneless Beef from Japan [Docket No. 05-004-1] RIN0579-AB93 TSS SUBMISSION Date: August 24, 2005 at 2:47 pm PST
http://docket.epa.gov/edkfed/do/EDKStaffAttachDownloadPDF?objectId=090007d480993808
TSS
From: Terry S. Singeltary Sr.
To: Bovine Spongiform Encephalopathy
Cc: [email protected] ; [email protected] ; [email protected]
Sent: Friday, September 09, 2005 12:46 PM
Subject: R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
From: TSS ()
Subject: R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
Date: September 9, 2005 at 10:32 am PST
R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
FryøLaw PLLC
The Virtual EHS Law Firm 1M
3050 K St., N.W.
Suite 400
Washington, DC 20007-5108
Phone: 202.572.8267
Fax: 866.850.5198
rfrve~frveLaw. com
ww.FryeLaw.com
Via Express Delivery
Ms. Cathy Catterson
Clerk of the Court
United States Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
September 7, 2005
Re: Ranchers Cattlemen Action Legal Fund United Stock growers of America v.
U.S. Department of Agriculture, et al., Docket No. 05-35264
Dear Ms. Catterson:
Enclosed for filing please find the original and 50 copies of
AppelleelPlaintiff's Petition for Rehearing, with Suggestion for Rehearing En Banc,
in the above-captioned appeaL. Thank you.
ø~ Russell S. Frye
Counsel for Appellee/Plaintiff
Ranchers Cattlemen Action
Legal Fund United
Stockgrowers of America
cc: Counsel for all parties
No. 05-35264
__________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________________
RANCHERS CATTLEMEN ACTION LEGAL FUND
UNITED STOCKGROWERS OF AMERICA
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE et al.,
Defendants-Appellants,
__________________________________________________
PETITION FOR REHEARING, WITH SUGGESTION FOR
REHEARING EN BANC
__________________________________________________
RUSSELL S. FRYE A. CLIFFORD EDWARDS
FryeLaw PLLC TAYLOR S. COOK
3050 K Street, N.W., Suite 400 Edwards, Frickle, Anner-
Washington, DC 20007-5108 Hughes, Cook & Culver
(202) 572-8267 1601 Lewis Avenue, Suite 206
P.O. Box 20039
WILLIAM L. MILLER Billings, MT 59104
The William Miller Group, PLLC (406) 256-8155
3050 K Street, N.W., Suite 400
Washington, DC 20007-5108
(202) 342-8416
Attorneys for Plaintiff-Appellee
RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and Ninth Circuit Rule 26.1, Plaintiff-
Appellee Ranchers Cattlemen Action Legal Fund United Stockgrowers of
America ("R -CALF") hereby states that it is a non-profit corporation organized
under the laws of the State of Montana. R-CALF has no parent corporation, and
no publicly traded company owns 10 percent or more of the stock of R-CALF.
Dated: September 7,2005 ~t/vv Russell S. Frye
FryeLaw PLLC
3050 K Street, N.W., Suite 400
Z~0007 illiam L. Miller
The William Miller Group, PLLC
3050 K Street, NW, 4th Floor
Washington, DC 20007 .¿~~1 A. Clifforo Edwards
Taylor S. Cook
Edwards, Frickle, Anner-Hughes, Cook & Culver
1601 Lewis Avenue, Suite 206,
Billings, MT 59104
Attorneys for Plaintiff
RACHERS CATTLEMEN ACTION LEGAL
FUND UNITED STOCKGROWERS OF
AMERICA
ii
iii
TABLE OF CONTENTS
RULE 26.1 CORPORATE DISCLOSURE STATEMENT................................... ii
TABLE OF CONTENTS...................................................................................... iii
I. Introduction. .................................................................................................1
II. The decision is inconsistent with other decisions of this Circuit requiring an
agency to justify departures from prior factual and policy determinations.....3
III. The panel erred in imposing a very narrow standard of review of USDA's
action. ...........................................................................................................6
IV. The decision's discussion of USDA's failure meaningfully to assess the risk
of Canadian imports conflicts with Ober v. Whitman and ignores USDA's
own policy statements on risk assessment. ..................................................11
V. The panel improperly substituted its factual conclusions for those of the
District Court, contrary to other decisions of this Circuit. ...........................14
VI. The panel's conclusion on irreparable harm contained errors of fact and
law. . ...........................................................................................................17
FORM 11. CERTIFICATE OF COMPLIANCE PURSUANT TO
CIRCUIT RULES 35-4 AND 40-1 .............................................................21
CERTIFICATE OF SERVICE..............................................................................22
1
I. Introduction.
The panel's decision in this case, reported at 415 F.3d 1078, vacates a
preliminary injunction that was preserving long-standing U.S. import
protections against a dangerous disease, bovine spongiform encephalopathy
("BSE"), or "Mad Cow" disease, that has already cost the U.S. cattle
industry billions of dollars.
In addition, the panel's conclusion that the Secretary of Agriculture
has a vast amount of discretion to allow imports of pest-infested or diseased
animals and animal products, and the panel's proffered findings about the
underlying facts in the case, create a precedent that is highly prejudicial to
the public's right to judicial review of critical decisions affecting U.S.
agriculture and consumers. Moreover, since the statutory authority at issue
here is very similar to other statutes giving the Secretary of Agriculture
responsibility for preventing imports of pests and diseases affecting plants
and unsafe food1, the decision creates a precedent that also could be applied
to limit judicial review of critical USDA actions under those other statutes.
The parties agree that billions of dollars are at stake. Moreover,
because this matter concerns an inevitably fatal disease that has proven
1 See, e.g., Plant Protection Act, 7 U.S.C. § 7711(c)(1); Meat Inspection Act,
21 U.S.C. § 620(g).
2
difficult to control as it spread around the world, this case has important
potential effects on human health, U.S. livestock, and export markets.
Rehearing is appropriate here because the decision is inconsistent with
several other decisions of this Circuit and because it overlooks or misstates a
number of important points of law and fact. Contrary to the admonishments
of other opinions, the panel, while reviewing a preliminary injunction,
attempted a detailed review of facts not even fully developed below nor
presented fully on appeal. Not surprisingly, the panel missed or
misunderstood key aspects of the administrative record. The panel also
considered a statutory interpretation not argued below, and in so-doing
overlooked important indications of congressional intent.
Rehearing en banc is appropriate because this case involves questions
of exceptional importance and because consideration by the full Court is
critical to maintain consistency among the Court's decisions. The
exceptional national importance of the case is described above; it is apparent
as well from the great public interest in the case, reflected in the 11 amicus
curiae briefs, including those of six state attorneys general and a broad
coalition of national consumer groups and state and local agriculture groups
supporting Appellee Ranchers Cattlemen Action Legal Fund United
Stockgrowers of America ("R-CALF").
3
II. The decision is inconsistent with other decisions of this Circuit
requiring an agency to justify departures from prior factual and
policy determinations.
For many years, the U.S. Department of Agriculture ("USDA") has
had a strict policy of prohibiting imports of cattle and beef from any country
where BSE is known to exist. See 70 Fed. Reg. at 462, Excerpts of Record
("ER") at 183. The purpose of this strict prohibition was to minimize the
potential for introduction of BSE into the U.S. cattle herd and the potential
for U.S. beef consumers to be afflicted with the human version of BSE,
variant Creutzfeldt-Jakob disease (vCJD). That policy was applied to
Canada on May 29, 2003, after the discovery of BSE in a native-born
Canadian cow. 68 Fed. Reg. 31,939. Under intense pressure from the
Canadian government and some U.S.-based meat packers, USDA
subsequently authorized imports of Canadian cattle and beef, subject to
some restrictions, in the regulation under review in this case, 70 Fed. Reg.
460 (January 4, 2005) (the "Final Rule").
R-CALF pointed out that USDA repeatedly concluded that banning
imports of cattle and meat from any country where BSE is discovered was
"necessary" because BSE could become established in the United States if
cattle with BSE were imported into United States. See, e.g., 66 Fed. Reg.
52,483 (Oct. 16, 2001), affirmed 67 Fed. Reg. 8181 (Feb. 22, 2002). USDA
4
policy derived from the nature of BSE: "We believe that due to the drastic
consequences of BSE introduction, strict import requirements are justified
to control even very low-probability risks of introducing BSE. In addition,
due to the long incubation period of BSE and the lack of long-term
comprehensive studies of its spread in countries with only a few reported
cases, we cannot accurately estimate the extent of BSE in countries with any
reported cases." 56 Fed. Reg. 63,865, 63,867 (April 30, 1991) (emphasis
added). See also 62 Fed. Reg. 65,747, 65,748 (Dec. 16, 1997) (given the
lack of a vaccine or a test to detect the disease in live animals, banning
imports of cattle and beef is "the most effective means available for ensuring
that BSE does not enter the United States….").
As recently as 2003, an inter-agency working group convened by the
Secretary of Agriculture explained to Congress the critical importance of the
ban on imports, "the primary firewall at the borders," in U.S. efforts to avoid
BSE. PL 107-9 Final Report ("Report to Congress"), SER20. It described
importing "live cattle that are already incubating the disease and then are
slaughtered, rendered, and incorporated into domestic meat and bone meal
that is mistakenly fed to cattle" as one of two "most likely routes of
introduction of BSE into the U.S. national herd." Id. at SER26.
5
USDA failed to meet its special obligation adequately to explain why
it chose to abandon its prior decision to ban imports of cattle and bovine
products from all countries with BSE, once BSE was discovered in Canada.
See California v. FCC, 905 F.2d 1217, 1234 (9th Cir. 1990); Lynch v.
Dawson, 820 F.2d 1014, 1021 (9th Cir. 1987). USDA failed to explain how
the Final Rule is consistent with 7 U.S.C. § 8303(a)(1), given that it
abandons prior policies that prevent "even very low-probability risks of
introducing" BSE into the U.S., now attempting only to "minimize" the risk
of "dissemination" once the disease has entered the country.
The panel failed entirely to address the fact that USDA reversed its
judgment about measures necessary to prevent the introduction of BSE into
the United States without providing adequate justification and without
referencing new information that could justify reversing its position. The
principal device that USDA now claims will provide adequate protection to
U.S. cattle if BSE-infected cattle are imported from Canada, the prohibition
on feeding ruminant protein to other ruminants, has been in place since
1997, ER190, yet, as noted above, USDA has said repeatedly since then that
importation and rendering of BSE-infected cattle, followed by mis-feeding
to U.S. cattle, is one of the primary risks for introduction of BSE into the
United States. The "Harvard Study" on which USDA principally relies for
6
support in its relaxation of BSE protections for Canada, was first completed
in 2001 and relies on scientific studies reported primarily in the 1990s.
ER180-81, 190-91. Clearly, USDA is not now relying on new information
that was unavailable when USDA in recent years repeatedly reaffirmed the
importance of the ban on imports of cattle from BSE-afflicted countries.
Rehearing is justified by the panel's failure to address and apply precedent
requiring an agency to justify its departure from its previous position.
III. The panel erred in imposing a very narrow standard of review of
USDA's action.
In a single page of its opening brief in this appeal, USDA raised an
argument it had not raised at the District Court, claiming that the language
and legislative history of one of the statutory provisions under which the
Final Rule was issued provide no standards by which to measure the
Secretary's exercise of discretion and render the decision to allow imports of
potentially BSE-contaminated cattle and meat virtually exempt from judicial
review. USDA Br. at 20-21. The decision adopts and expands upon this
reasoning. See 415 F.3d at 1094-95.
Numerous cases in this Circuit establish the principal that this Court
must not consider legal arguments on appeal that were not presented to the
District Court. See, e.g., Brown v. City of Tucson, 336 F.3d 1181, 1187 n.11
7
(9th Cir. 2003); Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004)
(refusing to consider legal arguments "which should be addressed by the
district court in the first instance"); United States v. Alisal Water Corp., 370
F.3d 915, 923 (9th Cir. 2004). The panel's failure to follow that precedent
warrants rehearing.
Moreover, without the benefit of the briefing that would have
occurred below had USDA presented this argument in the preliminary
injunction proceeding, the panel understandably misapprehended some
aspects of the legislative history. The panel focused on a discussion of the
definition of "disease" in the Conference Report for the Animal Health
Protection Act, 7 U.S.C. §§ 8301 et seq. (the only reference to the legislative
history in USDA's brief), but overlooked other language in the Conference
Report, emphasizing the very high priority Congress placed on preventing
diseases like BSE2: "Ensuring proper screening and testing, and, where
necessary, the eradication of animal diseases, is of paramount importance to
American Agriculture, USDA, the Congress, and the American people.
With the stakes to animal health and the farm economy so high, the U.S.
government should use the very best methods available to detect animal
2 The quoted language relates to testing for scrapie, a disease related to BSE.
See 70 Fed. Reg. at 461, ER185.
8
diseases." H.R. Conf. Rep. 107-424, reprinted in 2002 U.S.C.C.A.N. 141,
389.
The panel also may not have been aware that the Animal Health
Protection Act, although only enacted in 2002, replaced almost identical
language in a 1962 statute (P.L. 87-518, 76 Stat. 129, sec. 4). Cf. 415 F.3d
at 1094. Far from "indicat[ing] a congressional intent to give the Secretary
wide discretion in dealing with the importation of plant and animal
products" (id.), the legislative history of that 1962 predecessor statute
evidences congressional intent to "provide greater protection against the
introduction and dissemination of diseases of livestock" and to "charge the
Secretary of Agriculture with the general duty and responsibility of
preventing the entry or dissemination of communicable diseases of
livestock…." H.R. Rep. 1516, reprinted in 1962 U.S.C.C.A.N. 1822
(emphasis added); see also id. at 1823, 1825, 1827.3
3 Even the passage from the legislative history that the panel did focus on,
explaining that the Conference Committee wanted to give the Secretary
discretion to define "disease," indicates that the reason for doing so was so
that USDA could be more effective in focusing on real threats of disease,
rather than indicating an intent to give the Secretary discretion to decide to
allow imports of diseased animals that present a risk to U.S. livestock. See
2002 U.S.C.C.A.N. at 389; see also 7 U.S.C. § 8302(1) Moreover, the panel
apparently missed the fact that the AHPA defines the prions believed to
cause BSE as a "pest" rather than a "disease." Id. at § 8302(13)(I).
9
The panel also did not refer to another statute that bears directly on
congressional intent that USDA take steps to reduce, not increase, the risk of
BSE, and fully characterize for the public the risk of BSE and vCJD from
USDA actions. In the Animal Disease Risk Assessment, Prevention, and
Control Act of 2001, PL 107-9, Congress found that the potential
introduction of BSE into the United States would cause "devastating
financial losses to – the agriculture industry and other economic sectors; and
United States trade in the affected animals and animal products." PL 107-9
§ 2(a)(3). One of the express goals of PL 107-9 was "to make certain that
the Congress and the American public are fully informed as to the reliability
of our nation's animal health inspection system, its ability to protect our
domestic herds and the American public from the potential introduction into
the United States of" BSE. 147 Cong. Rec. S3709 (April 6, 2001).
Congress directed the Secretary to provide "recommendations to reduce and
manage the risks of . . . bovine spongiform encephalopathy, and related
diseases." Id. at § 3(b)(2)(B) (emphasis added). These clear statements of
congressional policy are contravened by the panel's conclusion in this case
that USDA need not minimize the risk of BSE from imports nor tell the
public how much risk is associated with imports allowed by the Final Rule.
Cf. 415 F.3d at 1094.
10
The standard of review for actions under the AHPA set out in footnote
15 of the decision, that the action should not be overturned "[a]bsent a
strong showing that the Secretary is not exercising [his 'considerable']
discretion consistent with the statutory requirements," is inconsistent with
other decisions of this Circuit interpreting judicial review under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Under those
decisions, an agency action is arbitrary and capricious or an abuse of
discretion under the APA if, for example, it frustrates a congressional policy
underlying the statute, and not only when it is inconsistent with a specific
statutory directive. See, e.g., Ariz. Cattle Growers' ash'n v. United States
Fish & Wildlife Service, 273 F.3d 1229, 1236 (9th Cir. 2001). An agency
also acts in a way prohibited by the APA if it acts without considering the
appropriate factors or after considering inappropriate ones, id., lacks data to
support its assumptions, Ober v. Whitman, 243 F.3d 1190, 1195 (9th Cir.
2001), fails adequately to explain its assumptions and conclusions,
California v. FCC, 905 F.2d at 1244, or fails to justify its departure from
prior policy decisions, see p. 5, supra.
The standard of review adopted in the decision appears not to allow
for all these other ways in which an action can be found to violate the APA,
focusing solely on the "not in accordance with law" portion of 5 U.S.C. §
11
706(2). This is not merely semantics. The decision dismissed or ignored
numerous findings by the District Court that USDA failed to provide a
reasoned explanation for part of the basis for its conclusions or had provided
an explanation that was internally inconsistent or not supported by the
record. The decision criticizes the District Court for using a "divide and
conquer" approach, analyzing USDA's support for its assertions about each
of the factors it claims will virtually eliminate BSE risk from Canadian
imports, implying that if USDA relies on a number of mitigation measures,
it does not matter if some of those measures were not adequately explained
or supported in rulemaking. See 415 F.3d at 1095. There is no basis for
such an approach in the APA, and in fact it does not even have a factual
basis: some of the mitigation measures address risks to U.S. cattle from live
cattle imports, while others address risks to humans. USDA was obligated
to justify its assumptions about the effectiveness of each of its BSE
mitigation measures.
IV. The decision conflicts with Ober v. Whitman and ignores USDA's
own policy statements on risk assessment.
The decision rejected the District Court's conclusions that USDA had
failed adequately to assess the risk to animal and human health presented by
the Final Rule. See 415 F.3d at 1096-97. The District Court, aided by the
12
declaration of an expert in risk assessment, found that USDA's failure to
attempt to quantify the risk presented by resuming Canadian imports, and
indeed its statement that it had not even determined what level of cattle and
human deaths would be acceptable as a result of the Final Rule, made it
impossible for the public and the reviewing court meaningfully to assess
USDA's policy choices in the Final Rule and its assurances that the risk was
acceptable and "very low." 359 F. Supp.2d at 1065, 1074. The panel
declared that "the AHPA does not require the Secretary to quantify a
permissible level of risk or to conduct a risk assessment." 415 F.3d at 1097.
But, as this Circuit concluded in Ober v. Whitman, 243 F.3d 1190, 1195, an
agency cannot conclude that something presents minimal risk without
describing the standard by which it judges the risk to be minimal.
In Ober, the Environmental Protection Agency had decided to exclude
certain sources of air pollution from a pollution control regulation because
they were "de minimis." This Circuit held that "unless" EPA has "provided
a full explanation of" the levels it considers de minimis, "supported by a
plausible explanation, we have no basis for exercising our responsibility to
determine whether" EPA's judgment that certain pollution sources are de
minimis complies with the APA. Id. The panel's willingness in the instant
case to accept USDA's assurances that the risks associated with the Final
13
Rule are acceptable, where USDA provided no standard for judging the
acceptability of such risks, and where its own experts said it did not yet have
enough information to predict the likelihood of introduction of BSE as a
result of resuming imports, SER317-18, is inconsistent with this Circuit's
insistence that an agency set forth the criteria it applied in judging the
acceptability of the risks of its action.
Additionally, the panel apparently overlooked the fact that preexisting
USDA policies confirm the need for quantitative risk assessments for actions
such as the Final Rule. USDA's own procedures for evaluating whether to
allow imports from a region that potentially carry a pest or disease,
AR009519-29, state that, while a qualitative risk analysis is generally
adequate for regions considered free of certain diseases, regions in which the
disease is known to exist due to recent outbreaks are deemed to pose a
higher level of risk and have historically been approached quantitatively.
AR009525. This is because "[q]uantitative modeling allows assessment of
specific risk concerns, testing of assumptions, analysis of attendant
uncertainty, and evaluation of the effectiveness of proposed mitigation
measures." Id.; accord, SER186-190, 194; SER32. The decision also
contains no recognition that, as noted at p. 9, supra, PL 107-9 demonstrates
congressional intent that the public be fully informed of the risks of BSE and
14
the effectiveness of BSE mitigation measures. In light of these USDA and
congressional pronouncements, the District Court's conclusion that USDA
should have provided more than its assurance that the risk of the Final Rule
is very low certainly was not an abuse of discretion.
V. The panel improperly substituted its factual conclusions for those
of the District Court, contrary to other decisions of this Circuit.
This Circuit has stated repeatedly that, when reviewing the issuance of
a preliminary injunction, the district court's assessment of the likelihood of
success on the merits must be reviewed for abuse of discretion, without
getting into "the underlying merits of the case." Harris v. Bd. of
Supervisors, Los Angeles Cty., 366 F.3d 754, 760 (9th Cir. 2004) (quotations
and citations omitted). The Court "will not second-guess whether the court
correctly applied the law to the facts of the case, which may be largely
undeveloped at the early stages of litigation." Earth Island Inst. v. U.S.
Forest Service, 351 F.3d 1291, 1298 (9th Cir. 2003) (quotations omitted);
see also, e.g., Stuhlbarg Int'l Sales Co. v. John D. Brush and Co., 240 F.3d
832, 839 (9th Cir. 2001).
In the instant case, however, that is precisely what the panel did. It
delved deeply into the merits of the case, substituting its judgment for the
District Court's on a variety of issues and concluding that "the risks inherent
15
in the Final Rule are small" and that it "likely is supported by an adequate
administrative record." 415 F.3d at 1100. The decision's failure to follow
extensive precedent in this Circuit about the appropriate scope of appellate
review of a preliminary injunction warrants rehearing.4
Not surprisingly, when the panel attempted to apply the law to the
facts in the context of a preliminary injunction appeal, it missed or misstated
numerous key facts.5 The panel did not even address directly a critical
factual finding by the District Court, that USDA management entered the
rulemaking with a preconceived notion that it was important to reopen trade
with Canada as soon as possible, before having evaluated the risks and
impacts of doing so, and thereafter attempted to develop a justification for
4 The decision claims that the District Court erroneously concluded that the
AHPA requires USDA to eliminate all risk of BSE from imports, and this
illegal error infected the District Court's review of the facts. 415 F.3d at
1094-95. This is a "straw man" argument, though-- the decision recognizes
that the District Court never said that USDA was required to assure that
Canadian imports present no additional risk of BSE. Id. at n.14; see also
Transcript of preliminary injunction hearing at, e.g., SER289-91 Rather,
the District Court appropriately evaluated the likelihood that R-CALF could
show USDA's conclusions that the BSE risk was "virtually eliminated" by
various mitigation measures in the Final Rule were not adequately
supported. This is not "imposing...a 'zero-risk' requirement" (id.), it is
applying the APA requirement that USDA have a factual basis for its
assertions that there is little or no risk from the circumstances allowed under
the Final Rule. See, e.g., 359 F. Supp.2d at 1068.
5 The panel even did its own analysis of Switzerland's BSE experience not
presented in the briefs or, apparently, the record. See 415 F.2d at 1097.
16
this policy decision. R-CALF provided numerous examples of statements
by USDA management about the need to move quickly to resume trade in
cattle and beef with Canada in advance of an assessment of the risks of
doing so (or before the facts of additional cases of BSE discovered in
Canada had been determined), as well as a report of USDA's Inspector
General that supported the same conclusion (SER220-25). Thus, there was
clear support for the District Court's factual conclusion that:
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.
359 F. Supp.2d at 1066; see also id. at 1074 (USDA "evidenced a
preconceived intention, based upon inappropriate considerations, to rush to
reopen the border….").
The decision on appeal does not contradict the District Court's factual
conclusions about USDA's preconceived intention to resume trade with
Canada, much less show that those conclusions were clearly erroneous. Cf.
Actors Equity ash'n v. Am. Dinner Theater Inst., 802 F.2d 1038, 1042 (8th
Cir. 1986). Those factual conclusions justify not applying the presumption
of deference to USDA decisions concerning imports from Canada. See, e.g.,
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059
17
(9th Cir. 2004) (improprieties in process overcame presumption that
administrative record was complete); Entergy Ark., Inc. v. Nebraska, 210
F.3d 887 (8th Cir. 2000) (where state reached political conclusion before
facts were available, no deference given to its factual conclusions); Motor
Vehicle Mfrs. ash'n v. State Farm Mutual, 463 U.S. 29, 52-56 (1983) (no
deference when agency emphasized cost of automatic seatbelts in contrast to
congressional intent that passenger safety be primary concern). The
decision's failure to abide by the uncontroverted factual findings of the
District Court warrants rehearing.
VI. The panel's conclusion on irreparable harm contained errors of
fact and law.
The decision states "we disagree with the district court's assessment
of the irreparable harm threatened by the Final Rule" and says the District
Court's concern about the threatened harm "appears to be overstated." 415
F.3d at 1093, 1105. But a district court's findings in preliminary injunction
proceedings may only be overturned if the reviewing court finds an abuse of
discretion, not just because the panel "disagrees with" the District Court's
assessment of the harms. This is the kind of second-guessing of the district
court's findings that this Circuit has rejected many times. See, e.g., Rucker
v. Davis, 237 F.3d 1113, 1118 (2001) (en banc).
18
The panel also missed important aspects of the substantial irreparable
harm that the preliminary injunction addressed. Cf. 415 F.3d at 1104-1105.
It ignored the fact that USDA estimated that the Final Rule would cost U.S.
cattle producers, mostly small businesses, close to $3 billion dollars. 70
Fed. Reg. at 539, 543, ER263, 267.
The panel apparently also missed the fact that the "stigma" damages
to which the District Court referred were not just damages to "American
demand for beef." 415 F.3d at 1105. The District Court was aware that fears
about the safety of beef from the U.S. after the discovery of a single BSEinfected
cow (born in Canada) in the United States caused most countries to
ban imports of U.S. beef, costing the cattle industry billions of dollars (359
F. Supp.2d at 1061, 1073) and that the earlier discovery of BSE in Canada
led Japan to demand that all beef from the U.S. be raised and slaughtered in
the U.S. ER248. The District Court thus rationally concluded that
importing cattle from Canada (which identified four cases of BSE in less
than two years) presented a risk of significant irreparable harm to U.S.
exports of beef.
Thus, not only did the panel not make the requisite finding that the
District Court's assessment of irreparable harm from cost to U.S. producers
and impact on foreign demand was clearly erroneous, it could not have. 6
Dated: September 7, 2005
Respectfully submitted,
~~ Russell S. Frye
FryeLaw PLLC
3050 K Street, N. W., Suite 400
Washington, DC 20007 ~8267
William L. Miller
The William Miller Group, PLLC
3050 K Street, NW
Fourth Floor
Washington, DC 20007
(202) 342-8416 tl~~¥- A. Cliffor dwards /
Taylor S. Cook
Edwards, Frickle, Anner-Hughes, Cook &
Culver
1601 Lewis Avenue, Suite 206,
6 In contrast, the alleged harm from the preliminary injunction actually arises
from circumstances that predate the Preliminary Injunction by almost two
years, see Stuhlbarg, 240 F~3d at 841, and involves less than 1 % of the U.S.
cattle herd, cf ER91 with SER160.
19
20
P.O. Box 20039
Billings, MT 59104
(406) 256-8155
Attorneys for Plaintiff
RANCHERS CATTLEMEN ACTION
LEGAL FUND UNITED
STOCKGROWERS OF AMERICA
Form 11. Certificate of Compliance Pursuant to
Circuit Rules 35-4 and 40-1
Form Must be Signed by Attorney or Unrepresented Litigant
and Attached to the Back of Each Copy of the Petition or Answer
(signature block below)
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for
panel rehearing/petition for rehearing en banc/answer is: (check applicable
option)
_X_Proportionately spaced, has a typeface of 14 points or more and
contains 4199 words (petitions and answers must not exceed 4,200 words).
or
- Monospaced, has 10.5 or fewer characters per inch and contains
words or lines of text (petitions and answers must not
exceed 4,200 words or 390 lines of text).
or
- In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.
(New Form 7/1/2000)
21
22
CERTIFICATE OF SERVICE
I hereby certify that, on the 7th day of September 2005, I have caused a copy
of the foregoing Petition for Rehearing, with Suggestion for Rehearing En Banc, to
be served by placing it in the U.S. mail or consigning it to an express delivery
service, addressed to:
Mark B. Stern
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Room 7256
Washington, DC 20530
Attorney for Defendants/Appellees
Christian D. Tweeten
Chief Civil Council
Department of Justice
P.O. Box 201401
Helena, MT 59620
Attorney for amici curiae States of Montana, Connecticut, Nevada,
New Mexico, North Dakota, and South Dakota
David A. Domina
Domina Law, pc llo
2425 S 144th St
Omaha, NE 68144
Attorney for amici curiae 67 National, State, and Local Consumer
Research Groups, Public Interest Organizations, Farm and Ranch
Organizations, and Local Private Organizations
Maureen E. Mahoney
Latham & Watkins, LLP
23
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004-1304
Attorney for amicus curiae Government of Canada
Gregory G. Garre
Hogan & Hartson, LLP
555 Thirteenth Street, NW
Washington, DC 20004
Attorney for amici curiae National Cattlemen's Beef
Association, American Farm Bureau Federation,
National Pork Producers Council, 29 State Cattlemen's
Associations, 18 State Farm Bureaus, and 9 Individual
Cattle Producers
Sarah Weinstein
Mayer, Brown, Rowe & Maw, LLP
Two Palo Alto Square
Suite 300,
3000 El Camino Real
Palo Alto, CA 94306-2112
Attorney for amicus curiae Alberta Beef Producers
Michael B. Gillett
McElroy Law Firm, PLLC
Two Union Square
601 Union Street, Suite 1606
Seattle, WA 98101
Attorney for amicus curiae Easterday Ranches, Inc.
Joseph O. Click
Blank Rome, LLP
Watergate, Eleventh Floor
600 New Hampshire Avenue, NW
Washington, DC 20037
Attorney for amici curiae Canadian Cattlemen's Association
and Its Affiliated Organizations
Jonathan L. Abram
Hogan & Hartson, LLP
555 Thirteenth Street, NW
Washington, DC 20004
Attorney for amici curiae American Meat Association,
North American Meat Processors, Southwestern Meat Association,
Eastern Meat Packers Association, American Association of
Meat Processors, National Restaurant Association, and United Food and
Commercial Workers
John O'Brien
Kerr, Brosseau, Bartlett, O'Brien, LLC
Suite 1600
1600 Broadway
Denver, CO 80202
Attorney for amicus curiae Pioneer, Inc.
Gregg Spyridon
Spyridon, Koch, Palermo & Dornan, LLC
Suite 3010
Three Lakeway Center
3838 N. Causeway Blvd.
Metairie, LA 70002
Attorney for amici curiae the Came lid Alliance, et al.
Alan Charles Raul
Sidley Austin Brown & Wood, LLP
1501 K Street, N.W.
Washington, DC 20005
Attorney for amicus curiae Tyson Foods, Inc. ~ . ~~
Russell S. Frye
24
http://www.r-calfusa.com/BSE/USDA%20Appeal%20Petition%20for%20Rehearing.pdf
Docket No. 03-080-1 -- USDA ISSUES PROPOSED RULE TO ALLOW LIVE ANIMAL
IMPORTS FROM CANADA
https://web01.aphis.usda.gov/BSEcom.nsf/0/b78ba677e2b0c12185256dd300649f9d?OpenDocument&AutoFramed
Subject: Importation of Whole Cuts of Boneless Beef from Japan [Docket No. 05-004-1] RIN0579-AB93 TSS SUBMISSION Date: August 24, 2005 at 2:47 pm PST
http://docket.epa.gov/edkfed/do/EDKStaffAttachDownloadPDF?objectId=090007d480993808
TSS
