AFF Sentinel Vol.2, #36

Bottom Line: R-CALF Loses, But So Does Everyone Else

In Part I, we noted how the Ninth Circuit Court of Appeals rejected Judge Cebull's attempts to substitute his judgment for USDA's, disallowed his apparent zero-risk standard on the USDA and pointedly noted that the default condition is an open border, unless facts as determined by USDA call for closures.

The court also examined USDA's BSE prevalence calculations compared to the OIE's recommendations and held the USDA's assessment valid, contrary to R- CALF's numerous claims that the USDA was not adhering to OIE recommendations.

Another of R-CALF's oft-repeated charges was that Canada had not tested enough to know how much BSE it had. Based on R-CALF's expert witness's calculations that Canada's rate was on par with EU countries, Cebull made his infamous finding of a "potentially catastrophic risk of danger to the beef consumers in the U.S." Specifically examining these calculations and assumptions and quoting Cebull's above words, the Ninth saw no justification that the district court, without justification, "impermissibly substituted its judgment" for USDA's and adopted "the calculation of R-CALF's expert wholesale."

The Court noted that USDA's calculations were between 0.3 and 0.4 cases per million, the OIE as 0.33 in 2003 and 0.149 in 2004 vs. R-CALF's calculations of 5.5 per million. The court did not address the dichotomy that R-CALF excoriated Canada for not testing enough to know the true prevalence but that R-CALF somehow "knew" that the rate was 13 to 16 times what USDA and OIE estimated.

The court, based on the facts of record, rejected the contentions of R-CALF and its experts that Canada's BSE prevalence should be regarded as similar to that of the UK.

The court also found no validity in R-CALF's claims regarding BSE transmissibility through saliva, blood or fat, its claims regarding Canada's feed ban or its questioning of the efficacy of SRM removal.

As for the other grounds, the Ninth evaluated R- CALF's attempts to scuttle the rule by technicalities related to NEPA and RFA - and dismissed them mostly on technicalities. There is some poetic justice here, also.

In the end, the Ninth said, "The record does not support the district court's alarmist findings that the ?irreparable economic harm' the district court foresaw from the stigma of Canadian beef will actually befall the American beef industry." In fact, the court noted that consumer demand for, and confidence in, American beef has remained strong following December 2003. The court also pointed out that far from expecting irreparable harm from the Rule, numerous friend-of-the-court briefs from "organizations representing large sectors of the American meat industry" had asked for reversal of the preliminary injunction.

And what was R-CALF's response to the Ninth's opinion? They are considering their "legal options," natch. They also said there is a "great divide" between the government and "certain sectors of the industry" and other groups like R-CALF "and consumers" who wish to tolerate no risk of BSE and "protect" the industry and consumers. Even now R-CALF cannot resist the opportunity to assault consumer confidence in beef. And again they claim they are allied with consumers, when their only allies are consumer activist groups whose positions do not represent the average consumer at all. And still the fear mongers, they draw an inaccurate and unjustified parallel between the Canadian situation and the UK and other European countries, saying those countries did "too little, too late."

To me, the fact remains that neither the Ninth, nor the Eighth, should ever have seen this case. It should never have been brought. It has been a colossal waste of time and money for the industry, the USDA and the courts. Contrary to R-CALF's contentions, the USDA did not rush to judgment - in the words of the legal eagles, was not "arbitrary and capricious" in the least. And while USDA would probably never say so, I think even the normal rulemaking took longer because USDA was excruciatingly careful and thorough, having already been sued once by R-CALF and anticipating more. The threats to consumer confidence are very real and the risks will continue if R-CALF pursues this case further.

By dragging out an already long procedure with further lawsuits, R-CALF made sure that the short- term pain to feeders, ranchers and packers went on as long as possible. It also made sure to further permanently the financial damage to all of those sectors, as well as forcibly relocating packing capacity to Canada from the U.S. And it led the Canadians to marshal the biggest pile of private and government market development money the North American continent has ever seen. This pile, coupled with the motivation of pain, lessons learned and resentment, will propel the Canadian beef industry into significantly better world market share than would ever have happened without R-CALF.

And all this effort was expended to help - who was it again?

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