‘Friend’ briefs admitted in trade suit

Cattle Market & Farm Reports, Editorials
Jun 20, 2007
by WLJ
13, 2005

— Granting of Canadian filings a surprise.
— Arguments slated July 13.
The Ninth Circuit Court of Appeals last week accepted a large number of amicus curiae briefs—also known as “friend of the court” briefs—in the appeal of an approved preliminary injunction banning the reopening of the U.S. border to Canadian live cattle. The court was also asked to reexamine an earlier request for intervener status in the late July permanent injunction hearing regarding Canadian beef and live cattle.
While several U.S. groups, on both sides of the issue, were expected to have their written opinions taken into account by the court, there was some surprise when the Canadian Cattlemen’s Association (CCA), the federal government of Canada and Alberta Beef Producers (ABP) had their “friend” briefs accepted.
Amicus curiae briefs permit those affected by the outcome of a case to provide relevant information for consideration by the judge or judges deciding the matter.
Legal experts said that a lot of courts won’t allow non-U.S. entities to have much say in domestic U.S. lawsuits, particularly when the litigants are both domestic and the case impacts a domestic industry.
“We're very encouraged that the (appellate) court granted CCA and other groups that will be impacted by the outcome of this case the opportunity to have input,” said CCA President Stan Eby. “The economic future of CCA members, the cattle producers of Canada, will be hugely impacted by the outcome of both the appeal of the preliminary injunction, and the hearing on a permanent injunction that will be held in U.S. District Court for Montana.”
Last Tuesday, both CCA and ABP filed an appeal in the Ninth Circuit asking for its request for intervener status in the permanent injunction case to be reinstated. The permanent injunction case is scheduled for oral arguments July 27 in the U.S. District Court of Montana, Billings.
CCA's brief says that CCA has both a significant economic interest in the outcome of the proceeding, and an equal and related interest in how the U.S. structures and implements its BSE regulations. The briefs also argue that Judge Richard Cebull abused his discretion by “failing to accord deference to the voluminous and scientifically substantiated record entered by USDA, while at the same time adopting, often verbatim, unsupported and inaccurate conjecture offered by R-CALF (United Stockgrowers of America).”
Other groups in favor of resuming cattle and beef trade with Canada who had their amicus briefs granted last week included the National Cattlemen's Beef Association, American Farm Bureau, American Meat Institute, and National Meat Association.
Sixty-seven state, regional and national organizations have filed an amicus brief in favor of keeping the injunction in place. Lead organizations in that filing included the Organization for Competitive Markets, the National Farmers Union, Consumer Federation of America, Public Citizen and a very large group of state and regional producer organizations that make up the Cattlemen’s Competitive Market Project (CCMP).
Oral arguments on the injunction appeal have been set for July 13 in Seattle, WA. The three-judge panel to hear the arguments has not yet been selected, however, they could be known sometime during the first week of July, according to an appellate court clerk.
The hearing on the permanent injunction request is scheduled to begin July 27 in Billings, MT. Unlike the preliminary injunction, which bans just Canadian live cattle from entering the U.S., the permanent injunction request includes a ban on all Canadian beef from crossing the U.S./Canada border.
Several sources said it would be unlikely that Cebull would rule on the permanent injunction on the same day oral arguments concluded. However, legal experts said they didn’t expect him to rule on the temporary injunction on the same day as oral arguments were presented, which he did.
Cebull reinstated the ban on Canadian live cattle on March 2, five days before USDA’s final rule regarding cattle imports from “minimal BSE risk” countries was scheduled to go into effect. R-CALF cited several shortcomings, including a lack of “scientific facts” and public health concerns, in the final import rule, with which Cebull agreed.
The clerk with the appellate court said that CCA and ABP’s appeal for intervener status in the permanent injunction request had not gone through the judge allocation process last week and would probably not be ruled on until early- or mid-July. — Steven D. Vetter, WLJ Editor

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