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R-CALF: State Attorneys General File Amici Curiae Brief to Support Rehearing
(Billings, Mont.) – The attorneys general of six states – Connecticut, West Virginia, New Mexico, North Dakota, South Dakota and Montana – have jointly filed an amici curiae, or friend-of-the-court brief, in the 9th U.S. Circuit Court of Appeals to show support for R-CALF USA's petition for a rehearing in its litigation against the U.S. Department of Agriculture (USDA) to keep the Canadian border closed to live cattle and beef products due to Canada's problem with bovine spongiform encephalopathy (BSE).
R-CALF USA filed a lawsuit against USDA on Jan. 10, 2005. On March 2, the U.S. District Court for the District of Montana granted R-CALF USA's request for a preliminary injunction that halted implementation of USDA's Final Rule on BSE minimal-risk regions, scheduled to reopen the Canadian border on March 7. On March 3, the U.S. Senate voted 52-46 to overturn USDA's Final Rule, but efforts seeking the same action from the U.S. House of Representatives were unsuccessful. On March 17, the USDA appealed the preliminary injunction, and on July 14, a three-judge panel for the 9th Circuit issued an order that reversed the preliminary injunction, which reopened the Canadian border. Canadian cattle began arrival into the U.S. on July 18.
The brief urges the 9th Circuit to grant the petition for a rehearing before a full panel of judges in the appellate court, to vacate the order that reopened the Canadian border, and to reinstate the preliminary injunction.
"Besides the concern for public health, many of the amici states realize that cattle production is an integral, and substantial, part of their economies," said R-CALF USA CEO Bill Bullard. "These cattle-industry dollars have significant links to other parts of each state's economy, especially in helping rural communities to thrive. And in some of these states, it was ranches and cattle that formed an enduring part of those states' history, culture and identity.
R-CALF USA remains grateful for support these states have shown through their consistent concern with this matter, and we look forward to the opportunity to present these scientifically valid concerns to the full 9th Circuit," said Bullard.
The brief states in part: "The amici states submit this brief because the federal government, with its premature decision to reopen the border, and the panel's decision, with its abdication of any form of effective review of the legality of USDA's actions since May 29, 2003, have failed to protect the interests of the public the Attorneys General serve . . .
"Federal law obligates the USDA to protect the public health from unsafe food supplies and to protect the agricultural economies in the United States from the threat posed by importation of unsafe farm products . . ." and USDA's Final Rule "failed that task, and the (9th Circuit) panel's decision, in effect, allows the USDA to fail without meaningful court review. The consequences of the panel's erroneous decision could be catastrophic, and (those consequences) are not limited to the states in the 9th Circuit."
The amici states maintain the 9th Circuit panel should have deferred to the District Court's decision and left the status quo in place until a full hearing on the merits could be held. The amici states also agreed that, unlike prior decisions in the 9th Circuit, the panel's opinion judged the merits of the case at the preliminary injunction stage.
" . . . It thus appears likely that without the appellate intervention of the panel, this case would have been tried on its merits, decided and on its way to this Court for full appellate review on its merits by now," the brief continues. " . . . If this were a dispute among private litigants, the amici states would likely not be filing this brief. But this case is pregnant with public interest of a national character. An error in the USDA's analysis will cause devastating consequences to important national interests, interests that are at the core of the USDA's functions with respect to the safety of the food supply and the farm economies of the states . . ."
USDA's Final Rule "puts the citizens of the amici states at risk of eating food contaminated with BSE and contracting, and dying from, vCJD (Creutzfeldt-Jakob disease) . . ."
The brief concludes that the panel's decision, departing from well-established 9th Circuit law, "has permitted the USDA to take this action free from any meaningful review under pertinent provisions of the Administrative Procedure Act, the Regulatory Flexibility Act, and the National Environmental Policy Act. The amici states respectfully urge the Court to grant the petition (for a rehearing)."
Note: To view the Brief of Amici Curiae, go to: www.r-calfusa.com and click "BSE-Litigation."
(Billings, Mont.) – The attorneys general of six states – Connecticut, West Virginia, New Mexico, North Dakota, South Dakota and Montana – have jointly filed an amici curiae, or friend-of-the-court brief, in the 9th U.S. Circuit Court of Appeals to show support for R-CALF USA's petition for a rehearing in its litigation against the U.S. Department of Agriculture (USDA) to keep the Canadian border closed to live cattle and beef products due to Canada's problem with bovine spongiform encephalopathy (BSE).
R-CALF USA filed a lawsuit against USDA on Jan. 10, 2005. On March 2, the U.S. District Court for the District of Montana granted R-CALF USA's request for a preliminary injunction that halted implementation of USDA's Final Rule on BSE minimal-risk regions, scheduled to reopen the Canadian border on March 7. On March 3, the U.S. Senate voted 52-46 to overturn USDA's Final Rule, but efforts seeking the same action from the U.S. House of Representatives were unsuccessful. On March 17, the USDA appealed the preliminary injunction, and on July 14, a three-judge panel for the 9th Circuit issued an order that reversed the preliminary injunction, which reopened the Canadian border. Canadian cattle began arrival into the U.S. on July 18.
The brief urges the 9th Circuit to grant the petition for a rehearing before a full panel of judges in the appellate court, to vacate the order that reopened the Canadian border, and to reinstate the preliminary injunction.
"Besides the concern for public health, many of the amici states realize that cattle production is an integral, and substantial, part of their economies," said R-CALF USA CEO Bill Bullard. "These cattle-industry dollars have significant links to other parts of each state's economy, especially in helping rural communities to thrive. And in some of these states, it was ranches and cattle that formed an enduring part of those states' history, culture and identity.
R-CALF USA remains grateful for support these states have shown through their consistent concern with this matter, and we look forward to the opportunity to present these scientifically valid concerns to the full 9th Circuit," said Bullard.
The brief states in part: "The amici states submit this brief because the federal government, with its premature decision to reopen the border, and the panel's decision, with its abdication of any form of effective review of the legality of USDA's actions since May 29, 2003, have failed to protect the interests of the public the Attorneys General serve . . .
"Federal law obligates the USDA to protect the public health from unsafe food supplies and to protect the agricultural economies in the United States from the threat posed by importation of unsafe farm products . . ." and USDA's Final Rule "failed that task, and the (9th Circuit) panel's decision, in effect, allows the USDA to fail without meaningful court review. The consequences of the panel's erroneous decision could be catastrophic, and (those consequences) are not limited to the states in the 9th Circuit."
The amici states maintain the 9th Circuit panel should have deferred to the District Court's decision and left the status quo in place until a full hearing on the merits could be held. The amici states also agreed that, unlike prior decisions in the 9th Circuit, the panel's opinion judged the merits of the case at the preliminary injunction stage.
" . . . It thus appears likely that without the appellate intervention of the panel, this case would have been tried on its merits, decided and on its way to this Court for full appellate review on its merits by now," the brief continues. " . . . If this were a dispute among private litigants, the amici states would likely not be filing this brief. But this case is pregnant with public interest of a national character. An error in the USDA's analysis will cause devastating consequences to important national interests, interests that are at the core of the USDA's functions with respect to the safety of the food supply and the farm economies of the states . . ."
USDA's Final Rule "puts the citizens of the amici states at risk of eating food contaminated with BSE and contracting, and dying from, vCJD (Creutzfeldt-Jakob disease) . . ."
The brief concludes that the panel's decision, departing from well-established 9th Circuit law, "has permitted the USDA to take this action free from any meaningful review under pertinent provisions of the Administrative Procedure Act, the Regulatory Flexibility Act, and the National Environmental Policy Act. The amici states respectfully urge the Court to grant the petition (for a rehearing)."
Note: To view the Brief of Amici Curiae, go to: www.r-calfusa.com and click "BSE-Litigation."
