AFF Sentinel Vol.4#31

Many people had never heard of R-CALF before its legal challenge to USDA's Final Rule resuming the import of Canadian slaughter cattle and meat into the U.S. So it should not be surprising that R-CALF would cling to any hope of keeping the issue alive.

R-CALF's reaction to the loss of its appeal to a three-judge Ninth Circuit Court of Appeals included the possibility of requesting a hearing before the entire Ninth Circuit panel. Not mentioned but an extreme long-shot option is an appeal to the Supreme Court. R-CALF has amassed resounding rejections at every judicial level since the first Billings court granted the preliminary injunction.

Another option R-CALF might be considering would be efforts to amend the Animal Health Protection act to change the procedures under which USDA regulates trade. In other words, if their legal efforts have only delayed but failed to stop trade, another option would be to work to pass legislation making trade more difficult or illegal. With the Democrats in power in Washington, R-CALF may view this option as feasible.

After all, the Democrats' control of Congress made certain the President's Trade Promotion Authority expired June 30 with little more than a whimper. Their control, as well as either conviction or rhetoric designed to cater to labor union and environmental activist opposition to trade, has also cast doubt on several free-trade agreements pending in Congress. Public Citizen and R-CALF have worked together to exploit the Chinese difficulties with safety compliance issues in their drive to get mCOOL implemented.

Did the Ninth give a decisive answer to R-CALF's appeal?

The Ninth's 17-page opinion did a complex sorting of the tasks presented to the district and the appellate court in this case. R-CALF had presented one body of evidence related to its try for the preliminary injunction. Now they wanted the case remanded back to the district court in Billings so that "new facts" it had presented relative to its second approach to the district court - the summary judgment request - could be considered.

Most of R-CALF's "evidence" in the initial hearing appeared to us to be rampant speculation, not proven science - scare tactics designed to destroy consumer confidence in beef safety.

The Ninth said administrative law precedent holds that neither court could consider any other evidence other than what R-CALF had presented in asking for the preliminary injunction in January 2005.

The Ninth would decide the case based on the extensive record of research and decision-making procedures USDA went through to write the original Final Rule, weighing USDA's procedures against APA (Animal Health Protection Act) standards. R-CALF's efforts to keep adding "evidence" to attempt to discredit an agency decision carefully made years ago would not be allowed.

The Ninth said it must determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choices made." It also said the standard of review is "highly deferential, presuming the agency action to be valid and affirming the action if a reasonable basis exists for its decision." An agency action can only be set aside if it is "arbitrary and capricious."

The Ninth reminded R-CALF that the USDA is the agency charged by Congress with regulating trade, they are experts in the field, that the presumption is that trade is the normal state of things unless there is some animal-health reason to limit it. The Ninth held that the district court in Billings had "not accorded adequate deference to the USDA's determinations." The agency had a "firm basis" for its decisions and used "international standards."

The Ninth's bottom line: USDA "considered the relevant factors and articulated a rational connection ... " The court added that R-CALF's additional evidence failed to show USDA's review was, "unauthorized, incomplete or otherwise improper."

USDA won the case.

Once again, R-CALF's view that USDA is to obstruct trade, rather than facilitate trade, was shot down. R-CALF's strategy - block trade by recklessly frightening the courts and beef consumers - was foiled.

Now R-CALF has said they will take the same strategy to the next public forum. Their single- minded devotion to that reckless strategy is what is truly frightening.

Next time: Science Distorted, New Political Strategies

Email your comments to the author

{mos_sb_discuss:08}