AFF Sentinel Vol.3 #38

While you were enjoying the holidays, R-CALF presented everyone with its warped idea of a Christmas present. It filed its brief with the Ninth Circuit Court of Appeals the day after Christmas. Its goal? Getting the Canadian border closed, jeopardizing exports and attacking consumer confidence -- again.

The 47-page brief lists every legal or federal rulemaking technicality R-CALF's lawyers could conjure up as one part of a strategy to reopen the case. The other part is to convince the court that the BSE issue is so highly technical and complex and there is so much new science since the original 2005 Billings District Court hearing, that the court just has to examine this new information. Not to mention the 12,000 pages of Administrative Record the Ninth didn't consider in its original decision.

R-CALF's goal is to get the case reopened in either the Eighth District Court in Billings or the Ninth Appeals, resulting in overturning USDA's Final Rule and closing the border.

As for not being allowed to present all the science, R-CALF could not even fill its original 34- page injunction brief with scientific fact. The document was replete with speculation, unfounded extrapolation and unproven, un-replicated scientific theory. If time has proven anything, it is that some of the far-out theories about BSE transmission routes, like saliva, would have produced thousands of BSE cases by now if they were factual. Instead, experience has confirmed science.

As for new relevant science, the deciding facts haven't changed. Cattle under 30-months of age don't carry BSE-infective material. Canada is not an exploding minefield of BSE-infected cattle. BSE is spread through feed containing BSE infective material and feed bans of ruminant material fed to ruminants break that link. BSE surveillance programs monitor the prevalence of BSE in cow herds and have nothing to do with human food safety. SRM removal protects humans from the already infinitesimal chance of infection. There is nothing that would overturn the world's nearly 20-year body of fact.

While R-CALF is desperately trying to convince the court there is compelling new data - after the fact - it conveniently neglects to mention other "new information." Its supposed primary reason for the case is null and void. It had proclaimed its goal to be to prevent the introduction of BSE into the U.S. herd. Time has proven we already had it.

If the facts haven't changed and R-CALF is reduced to parading technicalities to resurrect the case, why is R-CALF so intent on flogging this dead horse?

There are several apparent reasons. For one, they hate foreign imports and will go to any lengths to stop them. For another, they care little for export markets and could care less if mishandling import trade jeopardizes exports. They feel the domestic market is more than enough challenge for them to handle. Our market is demanding, shifting and competitive. Their railing against most of the free market system's attempts to innovate and adapt prove they feel overwhelmed and perhaps inadequate to cope with those changes. They see no harm in foregoing billions in export value, because they cannot comprehend how such money trickles back to cow/calf operators. If they can't see it short-term, it follows they can't see how limiting the American beef industry to four percent of the world's consumers is long-term suicide. How could they think eliminating 96 percent of their market would lead to profitability?"

There may be some technicalities the Ninth could use to reopen, if looking for excuses. R-CALF's attorneys have painstakingly hunted down cases that supposedly provide precedents for either court to re- open.

The Ninth's 54-page opinion was thorough, with an accurate grasp of the science the last time. Since science hasn't changed, we hope the Ninth lets sleeping dogs lie and keeps closed one of the more ignominious chapters in industry history.

It is possible that R-CALF and a misled, different and sympathetic court panel could conjure up flaming headlines of a "cover-up." After all, this is the San Francisco-based Ninth. Sensational headlines could induce unjustified and unreasoned panic in a public already sensitized by recent E. coli food problems. Global customers, jittery and looking for excuses, could react. Consumer confidence - always a fragile thing - is at risk.

Knowing that risk, R-CALF has answered, "Let's go for it!"

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