Appeal focuses on human health risk

Cattle Market & Farm Reports, Editorials
Apr 11, 2005
by WLJ
A reply brief was filed by the National Meat Association (NMA) last Monday with the Ninth Circuit Court of Appeals regarding the continuing battle over whether to allow imports of younger Canadian cattle. The brief not only sought the higher court= s intervention in allowing this organization to be an intervener in the case of R-CALF United Stockgrowers of America v. USDA, but also asked the court to overturn the preliminary injunction put in place by a Montana-based Federal District Court preventing the border from re-opening last month.

According to an NMA news release, the filing was a direct result of a comment made in a brief filed by R-CALF last week that said R-CALF has, A never argued that there was a great risk to human health from resumed imports of cattle and beef from cattle.@ Citing this statement, NMA asked the Ninth Circuit to immediately overturn the preliminary injunction against imports of Canadian cattle and beef, saying the judge= s ruling was based to a large extent on the alleged potential for harm to human health.

The 30-page preliminary injunction issued on March 2 by U.S. District Judge Richard Cebull addresses the issue of human health in an item entitled, A Has the USDA failed to adequately assess the impact of its action on human health?@ The A action@ Judge Cebull refers to is USDA= s issuance of a final rule creating a category of regions with minimal risk BSE and setting conditions for importation of ruminants and of meat and other ruminant products from such regions, and naming Canada as the sole region with that classification.

Cebull= s ruling says R-CALF alleges that by issuing the Final Rule, USDA has provided no assurance that the risk to human health is minimized, and USDA has not explained the criteria and basis for its conclusion that the increased risk presented by imports of Canadian beef and cattle is acceptable. Cebull cited the Animal Health Protection Act as law in this instance, since this act directs the USDA secretary to protect the health and welfare of the people of the United States.

NMA cites excerpts of Cebull= s ruling justifying the preliminary injunction because of an A increased risk to human health@ and also a A genuine risk of death for U.S. consumers.@ NMA said, A Now it appears that these conclusions by the Court had no basis in the record, since R-CALF has effectively admitted that they could not have been based on argument presented by R-CALF.@

When asked about the human health risk quote NMA is citing, R-CALF CEO Bill Bullard said, A They (NMA) blatantly misquoted our disease risk assessment expert who in his declaration said that while he did not consider a wide spread health risk to be highly likely under the proposed rule, he said it is not sufficiently unlikely to be dismissed or ignored. In other words, we are being realistic and factual in statements, and yet NMA is blatantly misrepresenting our expert in the caution that he was expressing to the court, which certainly borders on unethical practices on the part of NMA in a court of law.@

Bullard added that NMA= s quote that R-CALF never argued that there was a great risk to human health is not a direct quote. Instead, he said, they have deleted words and omitted commas and substituted them with a period to misrepresent R-CALF= s stance.

After reviewing the Ninth Circuit brief filed by NMA, Bullard said NMA suggests the only reason not to allow Canadian beef is it would cause a wide-spread health risk. A That= s not R-CALF= s position at all,@ said Bullard. A We acknowledge that this disease, as we have watched it unfold, is a rare disease. And, our position is that it is a disease with such devastating consequences that we must take every precaution to avoid it and prevent its introduction into this country. NMA= s position is all about their financial self-interest.@

Another aspect of the NMA brief is an allegation that R-CALF has never addressed the risk assessment work supporting USDA= s Final Rule, including three successive studies from the Harvard School of Public Health.

A R-CALF now seems more interested in supporting its protectionist preliminary injunction on procedural grounds rather than addressing human health and animal safety,@ said Rosemary Mucklow, NMA executive director. A And today to confirm the priority that R-CALF gives to procedural maneuvering, R-CALF filed with the Ninth Circuit a motion to strike the amicus briefs offered by two cattle feeders, Pioneer, Inc. and Easterday Feeders, and a brief offered jointly by the American Meat Institute and the North American Meat Processors in support of NMA= s appeal to the Ninth Circuit.

A R-CALF will apparently use every legal technicality and tactic to keep in place the preliminary injunction from which R-CALF members are reaping huge profits at the expense of the very survival of U.S. slaughter facilities and U.S. workers,@ Mucklow concluded.

Copies of NMA= s Reply brief and copies of R-CALF motion to strike are available on NMA= s website at Copies of R-CALF= s briefs and judge Cebull= s ruling can be found on the R-CALF website at

A hearing on the merits of R-CALF= s case for a permanent injunction is scheduled for July 27. As of press time last Thursday, it was uncertain whether the Ninth Circuit Court of Appeals will hear NMA= s case. C Sarah L. Swenson, WLJ Associate Editor

© Crow Publications - Any reprint of WLJ stories, except for personal use,
 without permission, written consent and appropriate attribution is prohibited.

©1996-2005 Crow Publications. All rights reserved.