##################### 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: edwardslaw@edwardslawfirm.org
Russell S. Frye*
FryeLaw PLLC
P.O. Box 33195
Washington, DC 20033
(202) 572-8267
Fax: (866) 850-5198
Email: rfrye@fryelaw.com
William L. Miller*
The William Miller Group, PLLC
3050 K Street, NW
Fourth Floor
Washington, DC 20007
(202) 342-8416
Email: wmiller@radix.net
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: edwardslaw@edwardslawfirm.org
Russell S. Frye*
FryeLaw PLLC
P.O. Box 33195
Washington, DC 20033
(202) 572-8267
Fax: (866) 850-5198
Email: rfrye@fryelaw.com
William L. Miller*
The William Miller Group, PLLC
3050 K Street, NW
Fourth Floor
Washington, DC 20007
(202) 342-8416
Email: wmiller@radix.net
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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