AFF Sentinel Vol.4#23

They Roll the Legal Dice, Hoping to Re-open the Case, Close the Border

The Ninth Circuit Court of Appeals heard oral arguments in Portland, OR. Friday to consider remanding R-CALF's lawsuit to close the Canadian border back to Billings' District Court.

A three-judge panel heard R-CALF's attorneys warn there was worrisome new evidence regarding BSE. Upon repeated prompts from the judges, however, the R- CALF lawyers did not disclose any of this new evidence, courtroom observers reported. The question, "What do you want us to do?" seemed not to draw a response that satisfied the judges, as they repeated the question several times during the hearing.

This hearing was the latest battle in R- CALF's war to keep Canadian cattle and beef out of the U.S. Canada supplies a net of less than five percent of the U.S. total but R-CALF opposes imports. They have spent millions of dollars in legal fees to close the Canadian border and attempts to re-close it.

The original temporary injunction in the Eighth District Court stopped USDA's scheduled reopening of the U.S.-Canadian border in 2005. That injunction was overturned by the Ninth Circuit Court of Appeals, with a thorough backing of USDA's handling of the issue. Friday's hearing was a last ditch effort by R-CALF to revive its case.

One judge asked why R-CALF didn't just take their alleged new evidence to the USDA. That drew no direct response from R-CALF's legal team.

Another judge asked the plaintiffs if they wanted a zero tolerance risk standard to be applied to this case. R-CALF's attorneys confirmed that.

Mark Stern, the attorney representing USDA, vigorously defended the agency's actions.

Representatives for the organizations who had filed an Amicus brief supporting the USDA were in attendance. Those organizations and companies included the National Meat Association, American Meat Institute, Easterday Ranches, Pioneer, Inc., North American Meat Processors, Southwest Meat Association, Eastern Meat Packers Association and the United Food and Commercial Workers.

The BSE border fight has been one key battleground in R-CALF's protectionist efforts to stop imports and eliminate cattle and beef trade. They favor implementation of mCOOL for the same reasons. They do not consider important the billions of dollars U.S. cattlemen receive from exporting beef and variety meats. Yet Cattle-Fax has pegged the added value from exports at over $100/head, some $1.5 billion and more. Both top beef cuts and variety meats not popular with Americans sell for much higher prices in other countries.

The frozen, lean beef that is imported to mix with domestic trimmings to help keep up with America's hunger for ground beef is trade R-CALF wants to stop. That beef is slaughtered under inspection procedures equivalent to USDA's system at approved foreign plants. The huge increase in the productiveness of American mother cows - both beef and dairy -- has meant fewer cows were needed to produce beef and milk. The problem: a major shortage of older slaughter cows (6 million vs. 11 million) to satisfy increasing ground beef demand.

The Ninth could rule on the appeal in the next couple months. Several allegations in R- CALF's original 2005 case have already been proven wrong, like their claim that Canada was overrun with BSE cases, analogous to the U.K.'s thousands in the mid-'80s. Also wrong was their claim that importing slaughter cattle from Canada could spread BSE into the U.S. cow herd. The U.S. already had BSE, albeit at an extremely low level and BSE does not spread by cattle-to-cattle contact as R-CALF testimony hypothesized.

Careful surveillance of hundreds of thousands of at-risk older cattle in both countries has detected extremely low numbers of BSE-infected cattle. The feed bans to prevent the spread among animals and the Specified Risk Material removal at slaughter to keep meat safe for human consumption have proven effective, just as in the rest of the world.

Ignoring scientific fact and world BSE experience, R-CALF has been obsessed with stopping imports at all costs. Their case claimed "an unjustified and unnecessary increased risk" to the U.S. herd. Recklessly risking consumer confidence in beef, they accused the USDA of "importing meat contaminated with BSE into the U.S.," to "expose U.S. consumers to increased risk of an invariably fatal disease." Judge Richard Cebull's ruling on the case resulted in the New York Times quoting his opinion that consumers were being threatened with a "genuine risk of death."

Here's hoping the Ninth rules R-CALF and the court system has interfered enough in U.S. beef trade.

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