-----Original Message-----
From: Shae Dodson [mailto:[email protected]]
Sent: Monday, July 18, 2005 1:59 PM
To: Undisclosed-Recipient:;
Subject: DTN: McEowen Says Border Issue Ongoing
DTN - - - AgDayta.com - - - July 15, 2005 - - - 14:02 p.m. CDT
Law Professor: Border Issue Ongoing
07/15 14:02
-R-CALF to Argue USDA Doesn't Use Sound Science
-Ninth Circuit Seen as Most Liberal Court
By Mike McGinnis DTN Staff Reporter
DES MOINES (DTN) -- Despite the court ruling this week that re-opened the U.S. border to Canadian live cattle, the legal battle between the USDA and R-CALF USA is far from over, said Roger McEowen, Iowa State University professor of agricultural law.
"This game's not over, the game hasn't even started yet," McEowen said.
The Ninth Circuit Court of Appeals decision, which lifts the injunction blocking USDA's authority to issue science-based rules, was simply a procedural issue, McEowen explained.
"With the only question being, during the trial on the merits, is the border opened or closed. The Ninth Circuit said the border is open while the case proceeds on the merits."
With the injunction appeal process over, the attention now turns to a July 27 hearing in the U.S. District Court of Judge Richard F. Cebull to make the injunction permanent.
If Judge Cebull awards R-CALF a permanent injunction, USDA is expected to appeal to the Ninth Circuit Court -- and if a decision is made favoring USDA's argument, R-CALF will likely appeal.
Described as the most liberal circuit court on a percentage basis, the Ninth Circuit Court of Appeals has the highest rate of decisions overturned by the U.S. Supreme Court compared to all other circuit courts, McEowen said.
"That makes it hard to predict what's going to happen with this case," McEowen said. "The trial court judge views this matter differently than the Ninth Circuit -- it's a higher court, but keep in mind the Ninth Circuit gets it wrong more often than any other circuit court does."
When asked what direction Judge Cebull may be leaning, McEowen said that is very difficult to predict.
"Keep in mind Judge Cebull has closed the (Canadian) border twice."
Meanwhile, in the upcoming July 27 hearing, R-CALF is expected to argue USDA's decision to resume Canadian cattle imports was not based on scientific data.
"Part of that will be the argument that USDA made up its mind to open the border and then boot-strapped rules on to get the border open," McEowen said.
"Country of origin labeling (COOL) will come up I'm sure, because USDA is on record of opposing mandatory COOL," he added.
Judge Cebull pointed out in his order granting a preliminary injunction in March that mandatory COOL should be a part of opening the border.
"If we're going to open the border, according to Judge Cebull, consumers need to know where the meat is coming from," McEowen said.
In addition, R-CALF is expected to bring up that USDA's policy of disallowing private companies to test 100 percent of their processed cattle demonstrates inconsistencies.
From: Shae Dodson [mailto:[email protected]]
Sent: Monday, July 18, 2005 1:59 PM
To: Undisclosed-Recipient:;
Subject: DTN: McEowen Says Border Issue Ongoing
DTN - - - AgDayta.com - - - July 15, 2005 - - - 14:02 p.m. CDT
Law Professor: Border Issue Ongoing
07/15 14:02
-R-CALF to Argue USDA Doesn't Use Sound Science
-Ninth Circuit Seen as Most Liberal Court
By Mike McGinnis DTN Staff Reporter
DES MOINES (DTN) -- Despite the court ruling this week that re-opened the U.S. border to Canadian live cattle, the legal battle between the USDA and R-CALF USA is far from over, said Roger McEowen, Iowa State University professor of agricultural law.
"This game's not over, the game hasn't even started yet," McEowen said.
The Ninth Circuit Court of Appeals decision, which lifts the injunction blocking USDA's authority to issue science-based rules, was simply a procedural issue, McEowen explained.
"With the only question being, during the trial on the merits, is the border opened or closed. The Ninth Circuit said the border is open while the case proceeds on the merits."
With the injunction appeal process over, the attention now turns to a July 27 hearing in the U.S. District Court of Judge Richard F. Cebull to make the injunction permanent.
If Judge Cebull awards R-CALF a permanent injunction, USDA is expected to appeal to the Ninth Circuit Court -- and if a decision is made favoring USDA's argument, R-CALF will likely appeal.
Described as the most liberal circuit court on a percentage basis, the Ninth Circuit Court of Appeals has the highest rate of decisions overturned by the U.S. Supreme Court compared to all other circuit courts, McEowen said.
"That makes it hard to predict what's going to happen with this case," McEowen said. "The trial court judge views this matter differently than the Ninth Circuit -- it's a higher court, but keep in mind the Ninth Circuit gets it wrong more often than any other circuit court does."
When asked what direction Judge Cebull may be leaning, McEowen said that is very difficult to predict.
"Keep in mind Judge Cebull has closed the (Canadian) border twice."
Meanwhile, in the upcoming July 27 hearing, R-CALF is expected to argue USDA's decision to resume Canadian cattle imports was not based on scientific data.
"Part of that will be the argument that USDA made up its mind to open the border and then boot-strapped rules on to get the border open," McEowen said.
"Country of origin labeling (COOL) will come up I'm sure, because USDA is on record of opposing mandatory COOL," he added.
Judge Cebull pointed out in his order granting a preliminary injunction in March that mandatory COOL should be a part of opening the border.
"If we're going to open the border, according to Judge Cebull, consumers need to know where the meat is coming from," McEowen said.
In addition, R-CALF is expected to bring up that USDA's policy of disallowing private companies to test 100 percent of their processed cattle demonstrates inconsistencies.
