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R-CALF USA VS USDA round III

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flounder

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##################### Bovine Spongiform Encephalopathy #####################

A. Clifford Edwards

Taylor S. Cook

Edwards, Frickle, Anner-Hughes, Cook & Culver

1601 Lewis Avenue, Suite 206, P.O. Box 20039

Billings, MT 59104

(406) 256-8155

Fax: (406) 256-8159

Email: [email protected]

Russell S. Frye*

FryeLaw PLLC

P.O. Box 33195

Washington, DC 20033

(202) 572-8267

Fax: (866) 850-5198

Email: [email protected]

William L. Miller*

The William Miller Group, PLLC

3050 K Street, NW

Fourth Floor

Washington, DC 20007

(202) 342-8416

Email: [email protected]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

________________________________________________

)

RANCHERS CATTLEMEN ACTION LEGAL FUND )

UNITED STOCKGROWERS OF AMERICA, )

)

Plaintiff, ) Cause No.CV-05-06-BLG-RFC

)

vs. )

) MEMORANDUM IN

) SUPPORT OF

UNITED STATES DEPARTMENT OF AGRICULTURE, ) PLAINTIFF’S MOTION

ANIMAL AND PLANT HEALTH INSPECTION ) TO SET MOTIONS FOR

SERVICE, et al., ) SUMMARY JUDGMENT

) FOR ARGUMENT

Defendants. )

________________________________________________ )

- 2 -

The Court’s order of July 20, 2005 canceling the scheduled argument on the crossmotions

for summary judgment in this case stated that the Court would “determine whether

further hearings are necessary” after receipt of the Ninth Circuit’s opinion on the U. S.

Department of Agriculture (“USDA’s”) appeal of the preliminary injunction issued March 2,

2005. (That opinion was issued on July 25, 2005, 415 F.3d 1078.) In response to the implication

in the July 20th order that the Ninth Circuit opinion on the preliminary injunction appeal could

obviate the need for further proceedings, Ranchers Cattlemen Action Legal Fund United

Stockgrowers of America (“R-CALF USA”) explains below why the Ninth Circuit’s action and

opinion should have no effect on R-CALF USA’s opportunity for a hearing on, and full

consideration of, its motion for summary judgment.

I. THE NINTH CIRCUIT’S DECISION VACATING THE PRELIMINARY

INJUNCTION DOES NOT LIMIT OR ELIMINATE THE NEED FOR

ARGUMENT AND A RULING ON THE SUMMARY JUDGMENT MOTIONS.

Fed. R. Civ. P. 56(b) contemplates that a hearing will be held on a motion for summary

judgment. The fact that a preliminary injunction was issued in this case and then vacated by the

Court of Appeals does not eliminate the need for that hearing.1 (In this case, since no witnesses

will be called, the parties and the Court anticipated that the hearing would consist of oral

argument by counsel.) Obviously, the Court of Appeals was reviewing an interlocutory order

that did not purport to resolve the merits of the case and that was entered before the merits of the

case had been fully briefed.

Actions related to a preliminary injunction do not bind the district court with respect to a

decision on the merits. Wright and Miller, Federal Practice and Procedure, Section 2962, 437-

1 Under Fed. R. Civ. P. 65(a)(2), a district court judge may order the trial on the merits

accelerated and consolidated with the preliminary injunction hearing, but that did not happen in

this case, and indeed extensive briefing on the merits occurred after the preliminary injunction

hearing.

- 3 -

438 (2004), observes that the decision of both the trial and appellate court on whether to grant or

deny a preliminary injunction does not preclude the parties in any way from litigating the merits

of the case. The Ninth Circuit has reiterated that self-evident proposition, stating in City of

Anaheim, Calif. v. Duncan, 658 F.2d 1326, 1328, n.2 (9th Cir. 1981) that “we have not departed

from the general rule that a decision on a preliminary injunction does not constitute the law of the

case and the parties are free to litigate the merits.” (Citations omitted.) In Ross-Whitney Corp. v.

Smith, Kline and French Labs, 207 F.2d 190,194 (9th Cir. 1953), for example, the Ninth Circuit

held that a “ruling on the motion for a preliminary injunction leaves open the final determination

of the merits of the case.”

Even if that precedent did not exist, however, it is clear under the circumstances of this

case that the Ninth Circuit’s action on USDA’s appeal of the preliminary injunction issued

against it could not dictate the resolution of, nor eliminate the opportunity for a hearing on, RCALF

USA’s motion for summary judgment. One of the grounds on which the Ninth Circuit

vacated the preliminary injunction—that this Court supposedly did not properly assess the

balance of harms from an injunction (415 F.3d at 1093)—is entirely irrelevant to a decision

whether to accept R-CALF USA’s claim that the Final Rule was issued in violation of the

Administrative Procedure Act (APA). The APA does not require any balancing of the harms

before a court determines that a regulation should be vacated under 5 U.S.C. § 706(2).

The other grounds for the Ninth Circuit’s decision, that the District Court erred in

deciding that R-CALF USA was likely to succeed on the merits, necessarily related only to the

facts that had been presented at the time of the preliminary injunction hearing. The presentation

of the issues at the preliminary injunction stage was understandably limited, both in terms of the

issues presented and legal arguments made and in terms of the factual support for those

- 4 -

arguments. Indeed, USDA had not yet even completed and filed





snip...full text ;





http://www.r-calfusa.com/BSE/MSJ_Memo_Supp_MO_Set_Argument.pdf



Exhibit 1, Final Rule, Whole Cuts of Boneless Beef from Japan (Adobe Acrobat PDF File 120K)

Exhibit 2, Proposed Rule, Whole Cuts of Boneless Beef from Japan (Adobe Acrobat PDF File 78K)



http://www.r-calfusa.com/BSE/Exhibit%201,%20Final%20Rule,%20Whole%20Cuts%20of%20Boneless%20Beef%20from%20Japan,%2012-14-05.pdf



Exhibit 3, APHIS Risk Analysis for Japan (Adobe Acrobat PDF File 315K)



http://www.r-calfusa.com/BSE/Exhibit%202,%20Proposed%20Rule,%20Whole%20Cuts%20of%20Boneless%20Beef%20from%20Japan,%208-18-05.pdf



Exhibit 4, Proposed Rule, FDA Feed Ban (Adobe Acrobat PDF File 238K)



http://www.r-calfusa.com/BSE/Exhibit%203,%20APHIS%20Risk%20Analysis%20for%20Japan,%2012-14-05.pdf



Exhibit 5, GAO Report, FDA Feed Testing Program (Adobe Acrobat PDF File 745K)



http://www.r-calfusa.com/BSE/Exhibit%204,%20Proposed%20Rule,%20FDA%20Feed%20Ban,%2010-6-05.pdf



Exhibit 6, Anne Buschmann et al. Scientific Study (Adobe Acrobat PDF File 3MB)



http://www.r-calfusa.com/BSE/Exhibit%206,%20Anne%20Buschmann%20et%20al.%20Scientific%20Study.pdf



Exhibit 7, Law Review, McGarity (Adobe Acrobat PDF File 907K)



http://www.r-calfusa.com/BSE/Exhibit%207,%20Law%20Review,%20Mcgarity.pdf



Plaintiff's Motion to Set Motions for Summary Judgment for Argument January 6, 2005 (Adobe Acrobat



http://www.r-calfusa.com/BSE/MSJ_MO_Set_Argument.pdf



A. Clifford Edwards

Taylor S. Cook

Edwards, Frickle, Anner-Hughes, Cook & Culver

1601 Lewis Avenue, Suite 206, P.O. Box 20039

Billings, MT 59104

(406) 256-8155

Fax: (406) 256-8159

Email: [email protected]

Russell S. Frye*

FryeLaw PLLC

P.O. Box 33195

Washington, DC 20033

(202) 572-8267

Fax: (866) 850-5198

Email: [email protected]

William L. Miller*

The William Miller Group, PLLC

3050 K Street, NW

Fourth Floor

Washington, DC 20007

(202) 342-8416

Email: [email protected]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

_______________________________________________

)

RANCHERS CATTLEMEN ACTION LEGAL FUND )

UNITED STOCKGROWERS OF AMERICA, )

)

Plaintiff, ) Cause No.CV-05-06-BLG-RFC

)

vs. )

)

UNITED STATES DEPARTMENT OF AGRICULTURE, ) PLAINTIFF’S MOTION

ANIMAL AND PLANT HEALTH INSPECTION ) TO SET MOTIONS FOR

SERVICE, et al., ) SUMMARY JUDGMENT

) FOR ARGUMENT

Defendants. )

________________________________________________)

- 2 -

In this action for judicial review of a U. S. Department of Agriculture (“USDA”)

rulemaking under the Administrative Procedure Act, 5 U.S.C. § 701-706, cross-motions for

summary judgment were filed and fully briefed this spring and early summer. Argument on the

summary judgment motions was scheduled for July 27, 2005, but the Court cancelled that

argument pending receipt of the Ninth Circuit’s opinion vacating the preliminary injunction that

had been issued in this case on March 2, 2005. The Ninth Circuit issued its opinion on July 25,

2005, 415 F.3d 1078, and it denied Ranchers Cattlemen Action Legal Fund United Stockgrowers

of America’s (“R-CALF USA’s”) petition for rehearing on October 13, 2005.

As explained in the attached memorandum, there is no reason to postpone argument on

the cross-motions for summary judgment any further. In fact, events since briefing of the

summary judgment motions only reinforce the need for this Court to review and vacate USDA’s

January 4, 2005 Final Rule allowing importation of cattle and beef from Canada. R-CALF USA

accordingly respectfully requests that a hearing on the pending cross-motions for summary

judgment be scheduled at the Court’s earliest convenience. Counsel for Defendants has been

contacted and indicates that Defendants agree that the summary judgment motions can now be

decided, but it is their position that the need for oral argument is a matter for the Court's

discretion. Defendants otherwise reserve judgment on whether it will be necessary to respond to

this motion.

Dated: January 6, 2006 Respectfully submitted,

________________________________

A. Clifford Edwards

Taylor S. Cook

Edwards, Frickle, Anner-Hughes, Cook & Culver

1601 Lewis Avenue, Suite 206, P.O. Box 20039

Billings, Montana 59104

- 3 -

(406) 256-8155

________________________________

Russell S. Frye*

FryeLaw PLLC

P.O. Box 33195

Washington, DC 20033

(202) 572-8267

________________________________

William L. Miller*

The William Miller Group, PLLC

3050 K Street, NW, Fourth Floor

Washington, DC 20007

*Admitted pro hac vice (202) 342-8416

Attorneys for Plaintiff Ranchers Cattlemen Action Legal

Fund United Stockgrowers of America

CERTIFICATE OF SERVICE

I certify that on January 6, 2006, I served true and correct copies of Plaintiff’s Motion To

Set Motions for Summary Judgment for Argument, by first-class mail, postage prepaid, on the

following:

Mark Steger Smith

Assistant United States Attorney

Office of the United States Attorney

PO Box 1478

2829 3rd Ave. North, Suite 400

Billings, MT 59101

Lisa A. Olson

U. S. Department of Justice

20 Massachusetts Ave., N.W., Room 6118

Washington, DC 20530

Donna Fitzgerald

Trial Attorney

General Litigation Section

Environment & Natural Resources Division

U.S. Department of Justice

P.O. Box 663

Washington D.C. 20044-0663

___________________________________



http://www.r-calfusa.com/BSE/MSJ_MO_Set_Argument.pdf



TSS

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Econ101

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~SH~ said:
R-CULT will lose again, write it down.


~SH~

SH, you keep telling people to "write it down". Maybe it is you who needs the secretary. Oh, the packer backers already have one--JoAnn Waterfield. Oh, she is gone. NEXT!
 

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