R-CALF USA Members Wins Injunction Against USDA’s BSE Rules

[Anonymous]

R-CALF United Stockgrowers of America


"Fighting for the U.S. Cattle Producer"



For Immediate Release &nbs p; Contact: Shae Dodson, Communications Coordinator
July 3, 2008 &n bsp; Phone: 406-672-8969; e-mail: [email protected]





R-CALF USA Members Win Third Injunction Against USDA's BSE Rules



Billings, Mont. – The United States District Court – District of South Dakota, Northern Division (District Court), today granted in part R-CALF USA's and 10 additional plaintiffs' (Plaintiffs') motion for a preliminary injunction against the U.S. Department of Agriculture's (USDA's) OTM (over-30-month) Rule. The OTM Rule, on Nov. 19, 2007, opened the Canadian border to imports of live cattle born after March 1, 1999, and beef products from Canadian cattle of any age.



In his 21-page opinion, District Court Judge Lawrence L. Piersol ordered that Plaintiffs' Motion for Preliminary Injunction be granted in part and that "the case be remanded to the USDA to promptly provide notice and comment on the OTM beef provisions . . . and to revise any provisions of the OTM Rule it deems necessary." The District Court also ordered that the remainder of Plaintiffs' case be stayed during the administrative proceeding required by the remand.



"For the third time in R-CALF USA's five-year long battle to secure adequate protections for both U.S. consumers and U.S. cattle producers, R-CALF USA was awarded an injunction against USDA's wrongful actions," said R-CALF USA President/Region VI Director Max Thornsberry, a Missouri veterinarian. "This latest decision demonstrates the legitimacy of R-CALF USA's persistent claim that the USDA is cavalierly exposing consumers and cattle producers to a known source of BSE contamination," he added. "R-CALF USA had made a special plea to the Secretary of Agriculture, prior to issuance of the OTM Rule, not to allow OTM beef imports without giving the public the opportunity to comment, which the District Court has now affirmed is needed. Instead, USDA played 'hide the ball' with the public, issuing a proposal that only addressed resuming imports of cattle born after March 1, 1999, followed by a final rule that also allowed imports of beef from Canadian cattle of any age."


In their Motion for Preliminary Injunction, the Plaintiffs raised 7 separate arguments, the first of which was that USDA failed to provide proper notice and opportunity for public comment prior to lifting the ban on Canadian imports of OTM beef. The District Court found that "Plaintiffs are likely to prevail on the merits of their first claim that the USDA failed to comply with the APA [Administrative Procedure Act] in promulgating the beef provisions of the OTM Rule. This conclusion requires remand to the USDA for additional proceedings and, therefore, the Court will not reach Plaintiffs' other challenges to OTM Rule at this time."



The District Court also found that the Plaintiffs would suffer irreparable harm if the injunction were not granted and concluded that remanding the OTM Rule to USDA for additional rulemaking is in the public interest. Judge Piersol also declined to order Plaintiffs to post a bond – typically required for a preliminary injunction – "because Plaintiffs are non-profit organizations and individual ranchers attempting to further the public interests and the goals of" the Animal Health Protection Act.



"The effect of this decision is that USDA is now forced to go back to do what should have been done before the OTM Rule was published in the first place," said R-CALF USA President Thornsberry. "In addition, all of our other claims will remain pending before the District Court, thus providing additional pressure on USDA during the Court-ordered rulemaking process to write a rule that will provide the United States with necessary protections to prevent the introduction of BSE from Canada."



Thornsberry said that R-CALF USA will also take the District Court's decision back to the congressional sponsors of the Resolution of Disapproval, which was introduced last fall to overturn the entire OTM Rule, to once again ask Congress to step forward to limit USDA's discretion on such an important decision as protecting U.S. consumers and the U.S. cattle herd against the introduction of BSE. "During this remand period we will have the opportunity to involve all three branches of government simultaneously – the executive, legislative, and judicial branches, which is an opportunity we've never before had in our 5-year long fight to secure adequate protections," said Thornsberry.



# # #



R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is a national, non-profit organization dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. R-CALF USA represents thousands of U.S. cattle producers on trade and marketing issues. Members are located across 47 states and are primarily cow/calf operators, cattle backgrounders, and/or feedlot owners. R-CALF USA has dozens of affiliate organizations and various main-st reet businesses are associate members. For more information, visit www.r-calfusa.com or, call 406-252-2516.

 

[PPRM]

I was hoping top see R-calf went to battle for the Creekstones of this world to allow for BSE Testing...... We will never get a segment back until we do this and we lose more customers everytime a Cow is found..Pull the scab and get it over with,


PPRM

 

[Anonymous]

I was hoping top see R-calf went to battle for the Creekstones of this world to allow for BSE Testing...... We will never get a segment back until we do this and we lose more customers everytime a Cow is found..Pull the scab and get it over with,


PPRM

R-CALF did file a friend of the Court for Creekstone--and Creekstone won their case--but USDA/Administration is using the stalling tactics of the Appeals process to keep their ruling standing and drag it out....

So PPRM- does that mean you think all bureaucratic agency's and government officials should be above the law and exempt from the rules :???:

I have to give these producers and R-CALF an ATTA BOY for standing up for the rule of law- and not letting a run amuck "think they are above the law" D.C. Administration and USDA bend and break the rules for special interests....

 

[gcreekrch]

I was hoping top see R-calf went to battle for the Creekstones of this world to allow for BSE Testing...... We will never get a segment back until we do this and we lose more customers everytime a Cow is found..Pull the scab and get it over with,


PPRM[/quote

Amen to that. It's time for both of our countries to move forward instead of the petty BS

 

[PPRM]

No.... that ticks me off as much as anything going......

My dad worked for the State for awhile. He talked about government guys who thought laws did not apply to the government...

OT, my head has been buried in work and I was not current on the suit. I have a 60 hour a week job and a 60 hour a week business right now, lol..

I think it was correct to allow testing...Testing only says the beef came from cattle that tested negative. It does not say all other cows have it...I think it strange that maybe a democrat administration would be less restrictive on this than a republican one.....

It is either an issue people care enough to pay a premium in excess of the test or not. The market will prove the value of testing...

 

[Anonymous]

No.... that ticks me off as much as anything going......

My dad worked for the State for awhile. He talked about government guys who thought laws did not apply to the government...

OT, my head has been buried in work and I was not current on the suit. I have a 60 hour a week job and a 60 hour a week business right now, lol..

I think it was correct to allow testing...Testing only says the beef came from cattle that tested negative. It does not say all other cows have it...I think it strange that maybe a democrat administration would be less restrictive on this than a republican one.....

It is either an issue people care enough to pay a premium in excess of the test or not. The market will prove the value of testing...

I know what you mean PPRM-- Our state had a law that even letting someone buy you a cup of coffee was considered "accepting a gratuity"- and then I watch these folks at the Federal level get away with anything :roll: ...

 

[DiamondSCattleCo]

Yep, R-Calf's really addressing the true problems in the beef market with this :roll: Nothing but a bunch of protectionist hypocrites who are afraid to put their beef up against Canadian.

Rod

 

[Anonymous]

Plaintiffs File Supplemental Notice in OTM Case



Source: R-CALF USA

July 2, 2008



Billings, Mont. – R-CALF USA and 10 additional plaintiffs (Plaintiffs) filed a Notice of Supplemental Authority (Notice) with the District Court – District of South Dakota, Northern Division (District Court) on July 1. The Notice informs the District Court about the latest case of bovine spongiform encephalopathy (BSE) detected in Canada and provides other new information that supports the Plaintiffs' request for a preliminary injunction against the U.S. Department of Agriculture's (USDA's) OTM (over-30-month) Rule. The OTM Rule, which took effect Nov. 19, 2007, opened the Canadian border to imports of live cattle born after March 1, 1999, and beef products from Canadian cattle of any age.



On June 27, 2008, the Canadian Food Inspection Agency (CFIA) announced that the animal confirmed positive for BSE on June 23, 2008, was a 5-year-old cow that was born in the Province of British Columbia.



"This animal, which was born in 2003, is the second-youngest bovine found to have BSE in Canada and was born more recently than any other BSE-infected cattle identified in Canada," the Notice states in part. "There have now been 14 reported cases of BSE in cattle born in Canada. Half of the BSE cases detected in Canadian-born cattle have been in cattle born after March 1, 1999 (the date that defendant United States Department of Agriculture ("USDA") concluded, in the rulemaking at issue in this case, was the date on which Canada's ban on ruminant protein in ruminant feed was effective to stop the spread of BSE). This is the eighth reported case that was born after the Canadian feed ban went into effect in 1997. It also is the third reported case that was born and raised in British Columbia province."



This new BSE case further demonstrates that USDA's conclusion that the Canadian feed ban was effective to stop the spread of BSE in Canada as of March 1, 1999, the date of eligibility for cattle exports to the U.S., was speculative and inconsistent with available information, the Notice also states. It further states that the 2003 birth date of this latest case, along with the fact that this was the third case detected in the Province of British Columbia, confirms that there have been at least three generations of BSE-infected cattle in the Canadian herd and that "BSE infectivity has been circulating in the Canadian feed supply more widely (geographically and over time) than USDA assumed."



The Notice also states that because this latest BSE-infected cow could have been imported into the U.S. before it died and was determined to have BSE, the Plaintiffs face an imminent threat of substantial, irreparable injury if a preliminary injunction is not granted. In further support of this injury, the Plaintiffs also informed the District Court of another new development: the "dramatic demonstrations in recent weeks" by Korean consumers against the importation of U.S. beef, based on fears of BSE. The Plaintiffs state that the reactions by tens of thousands of Koreans "bear directly on the reasonableness of USDA's speculation . . . that the economic impact of the discovery of additional cases of BSE in the United States 'will likely be minimal."'



The Notice, with its attached graphical timeline and chart of Canadian BSE cases, concludes: "The developments in Korea can be viewed with the knowledge now that two of the three BSE cases discovered since the challenged rule (OTM Rule) went into effect could have been imported legally into the United States from Canada under the challenged rule (OTM Rule) before they succumbed to BSE."



The Plaintiffs are seeking a preliminary injunction to halt the imports of OTM Canadian cattle and beef until the District Court completes its review of the merits of their claims. A hearing on the preliminary injunction motion was held in Sioux Falls, SD on Feb. 19, 2008. The District Court has not yet ruled on the preliminary injunction.



r-calfusa.com

 

[Aaron]

Having not followed this for a while, does this mean the border is closed? I don't understand how they are wanting a preliminary injunction while the court issues it's decision, but yet now have some other kind of injunction.

 

[Anonymous]

Having not followed this for a while, does this mean the border is closed? I don't understand how they are wanting a preliminary injunction while the court issues it's decision, but yet now have some other kind of injunction.

You know- I'm not sure if this closes the border or not--From what I read of the Judges ruling it tells USDA that they improperly followed the rules when they opened the border and that their OTM Border Opening rule is invalid- and that they have to do it over again...So if the OTM rule is invalid, I'd say it does to OTM beef/cattle....

The Supplemental Notice is the filing made on July 1st laying out some of the reasons asking for the injunction- which was then granted on July 3rd..I just posted it because it lays out a few more of the facts/reasons the Judge accepted for the injunction.....

The way I read it- the ball is now back in USDA's hands to do it over and do it right this time- following the rules (public hearings)- and looking at all the new info (positive cattle born after the feedban and their magic date), and the economic impact to US producers/US cattle industry rather than cutting corners and taking shortcuts for the special interests....

 

[Shaft]

The border remains open. the USDA hs to provide notice and opportunity to the public to comment on Rule 2 (which they did not fully do in the first place because the USDA said the debate had already taken place at the Rule 1 stage).

The parties (USDA and R-CALF) have to submit quarterly reports to the court on how the notification and comment proces is going. That should be fun. Mostly for the lawyers. Your tax dollars and R-CALF dues at work.

In other words, to the casual observer it may all appear as a practical matter to be as Shakespeare wrote in Macbeth: "a tale told by an idiot, full of sound and fury, signifying nothing." Except for the new Mercedes.

 

[Sandhusker]

Yep, R-Calf's really addressing the true problems in the beef market with this :roll: Nothing but a bunch of protectionist hypocrites who are afraid to put their beef up against Canadian.

Rod

Come on, Rod, you're smarter than than. R-CALF is attacking the source of 90% of our problems in the this industry; a sold-out USDA carrying water for the big packers while they give their own citizens the high dry one. Look at the what they've been pulling with this deal;

* They tell us your feed ban was effective in 1999 despite half your cases being born after that date and the fact that you recently tightened up your ban. The tightening itself was an admission that it wasn't working.
* They tell us Canada is "getting them all", when there is no way in hell that you can be getting them all if you're not testing them all.
* They tell us that we have he firewalls to catch any cases that might slip through the cracks when even the OIE, which they always reference as the world authority that should be followed" says that we don't.
* They've already been caught twice not following their own rules on opening the border
* They tell us the risk if importing BSE from Canada is "low", but then have no definition or scale for what "low" actually means.
* Lets not forget the complete reversal of established policy that they arbitrarily pulled that started the whole thing in the first place.

This whole thing has been one line of BS and/or outright lie after another after another. It's a dang shame that R-CALF is the only one that will stand up and tell the government that they're wrong and then do something about it.

If we can let those sold-out b-tards know that there's a new sheriff in town that isn't taking any crap, issues like Creekstone will get solved as well and eventually won't happen.

 

[DiamondSCattleCo]

So if R-Calf is this "new sheriff in town", why haven't they been more active on other fronts in "getting the USDA to protect producers"? Why wasn't R-Calf the first to sue the USDA over testing versus waiting for Creekstone to do it? Why only file a cheap-ass "friend of the court" instead of launching a COMPLETE damages lawsuit?

If R-Calf is so concerned over firewalls, where are the lawsuits trying to force the USDA to strengthen those firewalls?

If R-Calf is really concerned about disease entering the US herd, why hasn't R-Calf been more active with forcing the US government to enforce import quotas on South American beef?

Face it Sandhusker: The ONLY time R-Calf ever releases their lawyers is when it has to do with Canadian beef. Thats it. On other fronts they issue a few press releases and leave it alone. I haven't seen R-Calf talk about enhancing your feed ban at all in the last couple of years, and every day our enhanced ban is in place and yours isn't, is another day that the US's infection rate climbs while Canada's drops. If R-Calf was really concerned about US cattle producers, why aren't they as active on these other fronts?

A few hundred years ago, people thought the world was flat so there were laws banning people from sailing out of sight of the shoreline. Eventually they discovered the world was round. Should they still have kept the laws in place banning people from sailing out of sight of the shoreline? This is what I think of your policy arguement. The USDA's initial BSE policy wasn't based on any kind of real science, just a knee jerk reaction. Once they smartened up, they issued policy changes based on science, not protectionism and fear mongering.

My closing thought is this: If it walks like a protectionist duck, quacks like a protectionist duck and craps all over Canadian producers like a protectionist duck, it ain't Bobo The Clown. Its R-Quack, the protectionist duck.

Rod

 

[burnt]

The border remains open. the USDA hs to provide notice and opportunity to the public to comment on Rule 2 (which they did not fully do in the first place because the USDA said the debate had already taken place at the Rule 1 stage).

The parties (USDA and R-CALF) have to submit quarterly reports to the court on how the notification and comment proces is going. That should be fun. Mostly for the lawyers. Your tax dollars and R-CALF dues at work.

In other words, to the casual observer it may all appear as a practical matter to be as Shakespeare wrote in Macbeth: "a tale told by an idiot, full of sound and fury, signifying nothing." Except for the new Mercedes.

Touche! Beautifully done.

 

[QUESTION]

DSCC- :clap: :clap: :clap: :agree: :cowboy:

 

[Sandhusker]

So if R-Calf is this "new sheriff in town", why haven't they been more active on other fronts in "getting the USDA to protect producers"? Why wasn't R-Calf the first to sue the USDA over testing versus waiting for Creekstone to do it? Why only file a cheap-ass "friend of the court" instead of launching a COMPLETE damages lawsuit?

If R-Calf is so concerned over firewalls, where are the lawsuits trying to force the USDA to strengthen those firewalls?

If R-Calf is really concerned about disease entering the US herd, why hasn't R-Calf been more active with forcing the US government to enforce import quotas on South American beef?

Face it Sandhusker: The ONLY time R-Calf ever releases their lawyers is when it has to do with Canadian beef. Thats it. On other fronts they issue a few press releases and leave it alone. I haven't seen R-Calf talk about enhancing your feed ban at all in the last couple of years, and every day our enhanced ban is in place and yours isn't, is another day that the US's infection rate climbs while Canada's drops. If R-Calf was really concerned about US cattle producers, why aren't they as active on these other fronts?

A few hundred years ago, people thought the world was flat so there were laws banning people from sailing out of sight of the shoreline. Eventually they discovered the world was round. Should they still have kept the laws in place banning people from sailing out of sight of the shoreline? This is what I think of your policy arguement. The USDA's initial BSE policy wasn't based on any kind of real science, just a knee jerk reaction. Once they smartened up, they issued policy changes based on science, not protectionism and fear mongering.

My closing thought is this: If it walks like a protectionist duck, quacks like a protectionist duck and craps all over Canadian producers like a protectionist duck, it ain't Bobo The Clown. Its R-Quack, the protectionist duck.

Rod

R-CALF initiates a lawsuit and you start flapping your lips about enriching the lawyers. Now you're telling me that they ought to get in more and even jump in front of private companies who are handling their own business? :lol: :lol: :lol: :lol: :roll: :roll:

Can you refute anything in my post answering Rod or is all you can do is parrot an overused and illfitting buzzword?

Q," The USDA's initial BSE policy wasn't based on any kind of real science, just a knee jerk reaction."

:lol: :lol: :lol: You have no flipping idea of what you're talking about. Do a little research, Q.

 

[Cinch]

R-CALF probably would not have been allowed to sue in the Creekstone case because they did not have standing. At least it would have been much harder.
You should know that the Creekstone lawyer for the BSE testing case is the same lawyer for R-CALF's USDA case.

In both cases the court found that the USDA had violated the law. In Creekstone, the USDA has appealed.

In the BSE border case the judge has ordered the USDA to do the rulemaking process over again, and he will watch it at every step.

By US law (the Administrative Procedure Act) the USDA must consider all comments submitted to them. That will require them not to be arbitrary (such as with a 1999 date of effectiveness on the feed ban) but to give a halfway rational answer to every objection. By law they get deference to which science they follow, but they can't do just whatever they want. It has to be at least remotely supportable.

The judge in this case was pretty foxy. He has kept control of the case. It is very difficult to appeal at this point in the process, and if he walks through the whole process or rulemaking with the USDA all over again, it would be very hard to appeal then. Very smart judge.


Both of these cases should be considered a win for the good guys. When the government is caught breaking the law, it is the worst kind of lawbreaking there is. These were both more than mere technical violations. Both were cases of the government deciding beforehand what they wanted to do and then doing what was necessary (even lawbreaking) in order to do it. So I don't see how anybody can consider either one of these either bad decisions by the judges or unnecessary on the part of the plaintiffs.

If anybody here wants to declare that the feds should get a free pass on lawbreaking (that is, "R-CALF shouldn't have sued"), speak up.

 

[WHITEHAWK]

R-CALF announced Wednesday it has filed an additional legal challenge to the U.S. Department of Agriculture rule allowing Canadian cattle older than 30 months (OTM) to be imported into the U.S. Ten other plaintiffs joined R-CALF in asking the District Court of South Dakota to consider the latest case of bovine spongiform encephalopathy (BSE) in a five-year-old cow from British Columbia when ruling on an injunction to block USDA's rule.

The rule, which took effect Nov.19, 2007, allows cattle born in Canada after March 1, 1999, to be imported into the U.S. In its new notice to the court, R-CALF pointed out that half of the BSE cases detected in Canadian-born cattle have been in cattle born after March 1, 1999. R-CALF charged that USDA's conclusion that the Canadian feed ban was effective in stopping the disease is "speculative and inconsistent with available information." The court filing pointed out that the latest BSE-infected animal "could have been imported into the U.S. before it died and was determined to have BSE," bringing the "imminent threat of substantial, irreparable injury" to the plaintiffs unless the court grants a preliminary injunction.

R-CALF told the court that recent massive street demonstration against U.S. beef in Korea could now be viewed "with the knowledge that two of the three BSE cases discovered since the challenged rule went into effect could have been imported legally into the U.S. from Canada under the challenged OTM rule before they succumbed to BSE."

 

[QUESTION]

:roll: SandH. maybe quote the entire thought instead of only a part "The USDA's initial BSE policy wasn't based on any kind of real science, just a knee jerk reaction. Once they smartened up, they issued policy changes based on science, not protectionism and fear mongering." :roll:
Maybe you should heed a little of your own advice.sandH
Cinch maybe you can answer these - why none of the other plainiffs in this case are listed on here ? what is being hidden ? is there a reason ? Why not file somewhere else in the US ? Would the outcome be different ? I read about the rule 2 comment period did not R-CALF know about this ?
You say the USDA must consider comments submitted. Will that change anything? You also said the judge made it hard to appeal this decision so does that mean it cuts both ways and if the outcome isn't what R-CALF wants they won't be abble to file more injunctions? You did forget to mention that the judge did not make r-calf post a bond for this action that is in my understanding is a requirement, but cited that r-calf was a non-profit so he gave an exemption. Are all the plainiffs non-profits?

 

[ranch hand]

:roll: SandH. maybe quote the entire thought instead of only a part "The USDA's initial BSE policy wasn't based on any kind of real science, just a knee jerk reaction. Once they smartened up, they issued policy changes based on science, not protectionism and fear mongering." :roll:

Just like Canada had the same rules until they found BSE. Maybe you should heed a little of your own advice.sandH
Cinch maybe you can answer these - why none of the other plainiffs in this case are listed on here ? what is being hidden ? is there a reason ? Why not file somewhere else in the US ? Would the outcome be different ? I read about the rule 2 comment period did not R-CALF know about this ? Man you are funny. You say the USDA must consider comments submitted. Will that change anything? You also said the judge made it hard to appeal this decision so does that mean it cuts both ways and if the outcome isn't what R-CALF wants they won't be abble to file more injunctions? You did forget to mention that the judge did not make r-calf post a bond for this action that is in my understanding is a requirement, but cited that r-calf was a non-profit so he gave an exemption. Are all the plainiffs non-profits?

This is so funny! Kind of like growing white corn, huh ? Your posts just tear me up!