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9th Circuit Court Rejects R-CALF Arguments; Cebull's Reasoning

Posted on: Monday, 25 July 2005, 21:00 CDT

Jul. 26--The 9th Circuit Court of Appeals Monday rejected a cattle group's arguments and a federal judge's reasoning in reversing a preliminary injunction that kept Canadian live cattle out of the United States since March.

In a 54-page decision, the appellate court systematically deconstructed the arguments of the Billings-based Ranchers-Cattlemen's Action Legal Fund USA that opening the border to Canadian live cattle under 30 months of age was a threat to U.S. animal health and food safety.

It also rejected U.S. District Court Judge Richard Cebull's conclusions that R-CALF would succeed in obtaining a permanent injunction, and his "alarmist" findings that "irreparable economic harm" would befall the American beef industry if live trade was resumed.

The appellate court on July 14, a day after a hearing in Seattle, reversed Cebull's preliminary injunction of March 2 preventing the U.S. Department of Agriculture's plan to resume live cattle trade with Canada. That trade was suspended two years ago because of the discovery of bovine spongiform encephalopathy, or mad cow disease, in Alberta. The court had promised an expeditious explanation for reserving Cebull's order.

Canadian fed cattle began entering the United States a week ago.

A hearing set for Wednesday in Billings on R-CALF's permanent injunction request was vacated last week by Cebull pending the issuance of this decision. Cebull said that after reading the decision of the 9th Court, "this court will determine whether further hearings are necessary."

Leo McDonnell, Jr., R-CALF president said Monday afternoon, "We will consider our legal options over the coming days."

However, the 9th Circuit's opinion clearly documents the great divide between the government and certain segments of the industry, "those who are willing to tolerate a risk of BSE today, and other industry groups, like R-CALF, and consumers, who want to seize this opportunity to effectively prevent the spread of BSE and protect the U.S. cattle industry and consumers," he said.

Cebull in March found that R-CALF had demonstrated a strong likelihood of success on the merits of its case, which opposed USDA's 'Final Rule' on reopening the border because doing so, it said, posed only "minimal risk" to U.S. beef consumers.

Cebull said allowing Canadian live cattle into the United States increased the risk of variant Creutzfeldt-Jakob Disease to American beef consumers and injury to the U.S. beef industry and the U.S. economy would result from a "stigma" that tainted Canadian beef would inflict on the U.S. meat supply.

The three-judge appeals panel, however, wrote: "We believe the district court's calculus overstated the harm that would result. Based on the low incidence of BSE in the Canadian herd, the numerous safeguards against BSE in this country, the lack of any Canadian cattle under 30 months of age found with BSE and the lack of any case of vCJD attributable to Canadian beef, any increased risk to human and animal health created by the Final Rule is negligible."

The 9th Circuit Court took note that since August of 2003, de-boned muscle cuts of Canadian beef under 30 months of ago have been coming into the United States market under USDA permits: "This evidence belies the district court's prediction of catastrophic injury to the U.S. beef industry."

Because of a lengthy incubation period, BSE is not manifested in cattle less than 30 months old.

BSE is a brain wasting disease caused by warped proteins called prions that are found in the central nervous system tissues of infected cows. In the mid-1980s an outbreak of BSE in the United Kingdom resulted in the slaughter of thousands of infected cows and the collapse of the cattle and beef markets.

Since the 1990s, about 150 people in the United Kingdom have died as a result of vCJD from eating the infected tissues of BSE cows. Another 10-12 persons have died in Europe as a result of vCJD. There has been no indigenous case of vCJD in Canada or the United States.

Since May 2003, Canada has identified three cases of BSE in its cattle, two since January. The United States has reported two cases of BSE: in December 2003 in a dairy cow traced to Canada; and a U.S.-born cow in Texas in June.

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Copyright (c) 2005, Billings Gazette, Mont.

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Source: Billings Gazette, Billings, Montana

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