August 1, 2005
I t came and went without a lot of fanfare—I’m referring to R-CALF’s mid-year meeting in Reno, NV. I suppose they had a lot to talk about at the meeting, but the perplexing part of this episode is that it was kept pretty quiet. Here at WLJ, we didn’t run anything about the upcoming meeting because we had no clue about it, and, trust me, we pay attention to what R-CALF is up to.
Their quest to slam the USDA over its handling of the Canadian border situation may not be over after all. The Ninth Circuit Court of Appeals did indeed hand U.S. District Court Judge Richard Cebull his head over his decision to grant R-CALF a temporary injunction, and gave a fairly lengthy list detailing his lack of judgement.
R-CALF obviously didn’t like the ruling from the appellate court and they are contemplating their options. The three-judge panel outlined their logic in a 56-page document. They said that Cebull never referred to any case law to justify his decisions to favor R-CALF’s expert testimony. The judges said that Cebull must consider USDA’s decisions and justifications as fact, and then attempt to prove them wrong.
Even though USDA has bungled a few items on this BSE deal, the court maintained they are still the authority.
Some of the highlight comments from the court’s decision included, “They will reverse only where the district court abused its discretion or based its decision on erroneous legal standard or clearly erroneous findings of fact.” That may give R-CALF some wiggle room to pursue the case further.
“The district court failed to abide by this deferential standard,” the ruling said. “Instead, the court committed legal error by failing to respect the USDA’s judgement and expertise. Rather than evaluating the Final Rule to determine if USDA had a basis for its conclusions, the district court repeatedly substituted its judgment for USDA’s, disagreeing with USDA’s determinations even though they had a sound basis in the administrative record, and accepting the scientific judgments of R-CALF’s experts over those of the USDA.”
“The district court, in this instance, impermissibly substituted its judgement for that of the USDA. The USDA, in its final rule calculated Canada’s BSE prevalence rate to be between .03 and .04 per million head of cattle. The district court gave no reason for departing from this calculation and, instead, adopting the calculation of R-CALF’s expert wholesale, of 5.56 cases per million head.”
I spoke with Leo McDonnell about R-CALF’s intentions and he said that the Ninth Circuit didn’t shut them down on the entire case and that they intend on playing this thing out. He said they are still considering their legal options. He said that they won’t try and change venues, and they won’t go to the Supreme Court. He did say that Cebull did indeed get spanked by the Appellate Court, and they are not sure that he will even agree to hear the case on a permanent injunction request against Canadian beef and cattle.
R-CALF’s contention still is that USDA opened the Canadian border and then tried to justify their actions. He said that USDA’s BSE scientific working group said in 2003 that USDA shouldn’t open the border and USDA disbanded the group because they didn’t support USDA’s goal of resuming trade with Canada.
The thought that the U.S. has never imported beef from a BSE country may be true. But, prior to the U.S. having BSE, even though it was a Canadian case, USDA has been trying to change the perspective on BSE. The overlying thought ever since Canada had their first cases was, when the U.S. gets a case—not if—the U.S. should start to change its mind set on BSE world wide. The World Animal Health Organization (OIE) has always left wiggle room in their recommendations on beef trade from countries that have had BSE.
Right now it’s the under 30 months of age rule and specified risk material removal, prevalence rates, surveillance programs and a host of other recommendations that are allowing other countries to even consider buying U.S. beef. Frankly it’s in every cattle producer’s best interest to work to support the perspective that the disease is still insignificant. At this stage of the game, it’s not that we have it, it’s all about what we do about it. — PETE CROW