AFF Sentinel Vol.2, #35

Thorough, Detailed and Knowledgeable Opinion Leaves Little Doubt

Just over a week after the hearing in Seattle, the Ninth Court of Appeals followed up their prompt reversal of Judge Cebull's preliminary injunction with a thorough, painstaking and clear-cut explanation of their reasoning. Even R-CALF could barely muster but one paragraph of substantive response and resorted to exaggeration and misrepresentation for that.

The Ninth's written report clearly showed the court had pretty well mastered the material in their 56-page opinion. The first 21 pages were devoted to reviewing each of R-CALF's claims, examining USDA's procedures, research and justification and then reviewing the District Court's (Billings' Judge Richard Cebull's) evaluation and rulings. The Ninth then spent the next 31 pages systematically disassembling R-CALF's case and Cebull's rulings, citing the facts, legal precedents and USDA's care and thoroughness in researching and writing the Final Rule in the first place.

The Ninth's opinion noted at the very beginning of the analysis section that an appellate court will reverse a district court's decision "only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact."

The preliminary injunction issued by Cebull's district court rested first on its opinion that R-CALF's case had a strong likelihood of success on the merits. The other grounds for the injunction were technicalities having to do with proper procedures under the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA), which deals with estimating impact on small businesses. "None of these grounds withstand scrutiny," was the Ninth's verdict.

The Ninth noted that regulations by a government agency are presumed to be valid unless proven otherwise. In a review of the agency's actions, "All that is required is that the agency has ?considered the relevant factors and articulated a rational connection between the facts found and the choices made.' Further, "the court is not empowered to substitute its judgment for that of the agency.'" Deference to the agency is especially appropriate where a high level of technical expertise is involved, the court added.

Instead, the Ninth found the District Court "committed legal error by failing to respect the agency's judgment and expertise. Rather than determining if USDA had a sound basis for its conclusions, the "district court repeatedly substituted its judgment for the agency's," disagreed with USDA's determinations despite sound basis and accepted the "scientific judgment of R-CALF's experts over those of the agency."

As an example, the Ninth cited the district court's rejection of USDA's assessment of the BSE prevalence in the Canadian herd and the district court's acceptance of R-CALF's expert's prevalence rate without explanation.

The Ninth suggested that the district court may have misread the Animal Health Protection Act (AHPA).

"While the district court never explicitly stated that it was imposing such a ?zero-risk' requirement, its reasoning suggests that it did. Indeed, the district court appears to have required USDA to disprove all scientific uncertainty associated with BSE."

In fact, the Ninth found the AHPA put no such requirements on USDA and provided the Secretary with wide discretion based on fact. Most telling, the Ninth noted the "open borders are a default under the APHA, and the Secretary can close them only if ?necessary' to prevent livestock disease." The court concluded that the Secretary had a "firm basis" for determining the risk from Canada was not significant. In addition, the court said the BSE prevention measures should be viewed as a system of multiple, interlocking safeguards.

The Ninth noted that the low prevalence of BSE in Canada, its feed ban, its import restrictions from countries with high BSE rates, and the U.S. import restrictions to only cattle under 30-months from Canada all work together to keep the risk very low. The court even demonstrated knowledge of the relationship between dosage and BSE incubation period.

Inside the U.S., the court noted that the slaughter of any Canadian live imports before 30 months, the feed ban, SRM removal procedures and restrictions on AMR meat further reduced risk to animals and humans. In addition, the Ninth noted that, while the species barrier is not complete, the worldwide study of BSE and vCJD "suggests that humans do not contract the disease easily."

Next Time: Prevalence Calculations & The Case's Cost to the Beef Industry

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