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U.S. Cattle Producers Seek Rehearing of Court Decision That Allows Imports from Countries with BSE
(Billings, Mont.) – Today, attorneys for R-CALF USA filed with the U.S. 9th Circuit Court of Appeals a petition for a rehearing before the full appellate court regarding an opinion handed down by a three-judge panel in July that allowed the U.S. to resume imports of live Canadian cattle and additional beef products, despite the recent detection of four cases of bovine spongiform encephalopathy (BSE) in Canada under limited testing.
In March, the U.S. District Court for the District of Montana had granted R-CALF USA a preliminary injunction to keep the border closed to imports due to Canada's problems with BSE. USDA appealed that decision to the 9th Circuit, and on July 14, a three-judge panel on the 9th Circuit reversed the preliminary injunction.
"The long-term health of our nation's cattle herd and our beef consumers is at stake, as is the economic well-being of our U.S. cattle industry," said R-CALF USA CEO Bill Bullard. "As evidenced by the amicus curiae briefs in support of R-CALF already filed in the 9th Circuit from six state attorneys general, a broad coalition of national consumer groups, as well as state and local agriculture groups, the national importance of this case goes far beyond today's price of cattle. We are dealing with a disease that has devastated the cattle industries in other countries and that already has cost the U.S. cattle industry billions of dollars in lost beef exports after a single diseased Canadian cow was discovered in Washington state."
R-CALF USA's petition states that the three-judge "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 this case, create a precedent that is highly prejudicial to the public's right to judicial review of critical decisions affecting U.S. agriculture and its consumers. Moreover, since the statutory authority at issue here is very similar to other statutes giving the Agriculture Secretary responsibility for preventing imports of pests and diseases affecting plants and unsafe food, the decision creates a precedent that also could be applied to limit judicial review of critical USDA actions under those other statutes."
"Rehearing is appropriate because the panel's decision to reverse long-standing protections against BSE was made without any definitive scientific evidence, it is inconsistent with several other decisions by the same court, and because it overlooks or misstates a number of important points of law and facts contained in the Administrative Record," noted Bullard.
The petition also states: "The three-judge panel attempted a detailed review of facts not even fully developed in the district court, nor fully presented on appeal, and as a result, the panel missed or misunderstood numerous key aspects of this case."
"Because this case involves questions of national importance and because consideration by the full court is necessary to maintain consistency among the court's decisions, we hope the full court will agree that a rehearing is warranted," Bullard said.
Following are some other specific concerns with the panel's opinion that justify rehearing:
I. The opinion is inconsistent with other decisions of the 9th Circuit requiring an agency to justify departures from prior factual and policy determinations:
A) The opinion does not reflect USDA policy and pronouncements to Congress that prohibiting imports was the most important measure for preventing the introduction of BSE and that importation of diseased animals could result in the spread of BSE, despite the U.S. feed ban.
II. The opinion imposed a very narrow standard of review of USDA's action, based on an argument it should not have considered because it was not raised in the District Court:
A) The opinion overlooked statements in the legislative history of the Animal Health Protection Act (AHPA) that show paramount congressional intent that the Secretary of Agriculture prevent the entry or dissemination of communicable diseases of livestock and provide maximum protection to consumers.
B) The opinion did not refer to the Animal Disease Risk Assessment, Prevention, and Control Act of 2001 that showed congressional intent for USDA to take steps to reduce, not increase, the risk of BSE.
C) The opinion accepted USDA's assurances that the BSE risks are acceptable, yet USDA failed to quantify the risk – despite USDA policies that confirm the need for quantitative risk assessments, and despite a prior opinion of the circuit court requiring an agency to specify its criteria for classifying a risk as insignificant.
III. The opinion substituted factual conclusions for those of the District Court, contrary to other decisions by the circuit court:
A) Unlike prior decisions, the opinion judged the merits of the case at the preliminary injunction stage.
B) The opinion ignored the District Court's finding that USDA had a preconceived intention to allow Canadian imports before the facts were developed.
IV: The opinion's conclusion on irreparable harm contained errors of fact and law:
A) The opinion ignored the fact that USDA estimated the Final Rule would cost U.S. cattle producers, mostly small businesses, close to $3 billion.
B) The opinion missed the fact that past experience demonstrates that imports from Canada presented an irrefutable risk of significant, irreparable harm to U.S. exports of beef, which harm continues to accrue.
(Billings, Mont.) – Today, attorneys for R-CALF USA filed with the U.S. 9th Circuit Court of Appeals a petition for a rehearing before the full appellate court regarding an opinion handed down by a three-judge panel in July that allowed the U.S. to resume imports of live Canadian cattle and additional beef products, despite the recent detection of four cases of bovine spongiform encephalopathy (BSE) in Canada under limited testing.
In March, the U.S. District Court for the District of Montana had granted R-CALF USA a preliminary injunction to keep the border closed to imports due to Canada's problems with BSE. USDA appealed that decision to the 9th Circuit, and on July 14, a three-judge panel on the 9th Circuit reversed the preliminary injunction.
"The long-term health of our nation's cattle herd and our beef consumers is at stake, as is the economic well-being of our U.S. cattle industry," said R-CALF USA CEO Bill Bullard. "As evidenced by the amicus curiae briefs in support of R-CALF already filed in the 9th Circuit from six state attorneys general, a broad coalition of national consumer groups, as well as state and local agriculture groups, the national importance of this case goes far beyond today's price of cattle. We are dealing with a disease that has devastated the cattle industries in other countries and that already has cost the U.S. cattle industry billions of dollars in lost beef exports after a single diseased Canadian cow was discovered in Washington state."
R-CALF USA's petition states that the three-judge "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 this case, create a precedent that is highly prejudicial to the public's right to judicial review of critical decisions affecting U.S. agriculture and its consumers. Moreover, since the statutory authority at issue here is very similar to other statutes giving the Agriculture Secretary responsibility for preventing imports of pests and diseases affecting plants and unsafe food, the decision creates a precedent that also could be applied to limit judicial review of critical USDA actions under those other statutes."
"Rehearing is appropriate because the panel's decision to reverse long-standing protections against BSE was made without any definitive scientific evidence, it is inconsistent with several other decisions by the same court, and because it overlooks or misstates a number of important points of law and facts contained in the Administrative Record," noted Bullard.
The petition also states: "The three-judge panel attempted a detailed review of facts not even fully developed in the district court, nor fully presented on appeal, and as a result, the panel missed or misunderstood numerous key aspects of this case."
"Because this case involves questions of national importance and because consideration by the full court is necessary to maintain consistency among the court's decisions, we hope the full court will agree that a rehearing is warranted," Bullard said.
Following are some other specific concerns with the panel's opinion that justify rehearing:
I. The opinion is inconsistent with other decisions of the 9th Circuit requiring an agency to justify departures from prior factual and policy determinations:
A) The opinion does not reflect USDA policy and pronouncements to Congress that prohibiting imports was the most important measure for preventing the introduction of BSE and that importation of diseased animals could result in the spread of BSE, despite the U.S. feed ban.
II. The opinion imposed a very narrow standard of review of USDA's action, based on an argument it should not have considered because it was not raised in the District Court:
A) The opinion overlooked statements in the legislative history of the Animal Health Protection Act (AHPA) that show paramount congressional intent that the Secretary of Agriculture prevent the entry or dissemination of communicable diseases of livestock and provide maximum protection to consumers.
B) The opinion did not refer to the Animal Disease Risk Assessment, Prevention, and Control Act of 2001 that showed congressional intent for USDA to take steps to reduce, not increase, the risk of BSE.
C) The opinion accepted USDA's assurances that the BSE risks are acceptable, yet USDA failed to quantify the risk – despite USDA policies that confirm the need for quantitative risk assessments, and despite a prior opinion of the circuit court requiring an agency to specify its criteria for classifying a risk as insignificant.
III. The opinion substituted factual conclusions for those of the District Court, contrary to other decisions by the circuit court:
A) Unlike prior decisions, the opinion judged the merits of the case at the preliminary injunction stage.
B) The opinion ignored the District Court's finding that USDA had a preconceived intention to allow Canadian imports before the facts were developed.
IV: The opinion's conclusion on irreparable harm contained errors of fact and law:
A) The opinion ignored the fact that USDA estimated the Final Rule would cost U.S. cattle producers, mostly small businesses, close to $3 billion.
B) The opinion missed the fact that past experience demonstrates that imports from Canada presented an irrefutable risk of significant, irreparable harm to U.S. exports of beef, which harm continues to accrue.
