AFF Sentinel Vol.2, #32

What Else Is Possible?

This is the second part of our examination of the dissenting Supreme Court opinions on the checkoff and possible opposition avenues of approach.

There was another contention on which the Court did not issue an opinion - but it noted that the evidence submitted did not support the contention anyway. The law could be challenged if it could be established that, "individual beef advertisements were attributed to respondents," that is, if the ad messages could be attributed to the individual auction market operators who filed the suit, LMA or WORC. However, the Court noted from all the samples of promotional materials submitted, none "provides any support for this attribution theory," and in the only relevant testimony, a WORC employee indicated that he did not think any of the beef promotions would be attributed to WORC.

The Court also noted that messages attributed to "America's Beef Producers," "standing alone is not sufficiently specific to convince a reasonable fact finder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad.

"We therefore conclude that on the record before us an as-applied First Amendment challenge to the individual advertisements affords no basis on which to sustain the Eighth Circuit's judgment, even in part."

Of course, the main thrust of the original case filed in South Dakota was to force USDA to hold a referendum on the checkoff. USDA followed prescribed procedures and even hired an outside accounting firm, Price Waterhouse Coopers, to handle the examination of the petitions submitted by LMA. Duplications and signers who did not own cattle were found on the forms. Inducements had also been used to get people to sign the petitions. In the end, the USDA decided there were not enough valid signatures within the 12-month period to meet the requirements of the law. It was at that point that LMA filed suit.

Given that LMA would have to start all over again collecting signatures, that the latest poll put cattlemen's support for the checkoff at 73 percent and that the success of the program has been forcefully demonstrated in recent beef demand and the BSE response, it would seem LMA is looking at box canyons from every direction. The only point of a referendum would be just to make the point that they could force a referendum - one that they would almost assuredly lose. This industry has projects with much higher reward ratios ready if LMA and WORC have the time and money to spend.

At its news conference after the Supreme Court decision, LMA's John McBride questioned the validity of the surveys. Yet the results have been consistent for years. The surveys are conducted by an outside, nationally known research firm, are adjusted to reflect U.S. Census size and type of operation and geographical regions, and producers are selected randomly. In short, it is designed and executed as national, objective surveys are supposed to be handled.

It's time LMA and WORC and their members directed their efforts toward the future, i.e. where they're going and how they can fit in and help move forward. Even salmon eventually stop swimming upstream and lay their eggs. LMA has laid theirs. It has cost the industry lots of time, lots of acrimony and lots of money to bury the eggs. We certainly hope they never hatch.

Making the animal identification system practical for the auction market industry alone is a tremendous task. Helping find the best ways to get healthy, pre- vaccinated, bunk-broke calves - with useful genetic and ownership data attached - is what cattle feeders need from auctions. We suggest the effort be expended in directions like that. I'm sure there are other ideas to improve the process and results we could all think of if we worked together.

The Charter case against the checkoff was recently sent by the Ninth Circuit Court of Appeals back to Cebull's Billings court. The Charters, if they want to continue their fight, would probably have to do so on the contention that they personally are damaged by the political stands of a CBB contractor's separate policy division, not directly connected to, nor paid for, by the checkoff, i.e. the NCBA dues division. That would be like GE's jet engine division being held liable for the appliance division's toaster that shocks a kid sticking a fork in it. That seems like a long shot but when attorneys and courts are invited into your business, much is possible and little predictable.

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