AFF Sentinel Vol.2, #34

How Does the Ninth Circuit's Decision Affect Beef Industry's Other Legal Thriller?

Thursday's decision by the Ninth Circuit Court of Appeals to remove the preliminary injunction keeping the Canadian border closed has the countryside buzzing with questions. After quizzing a bunch of sources, we'll try to give you a handle on what's likely. Keep in mind that the Ninth has not released its full, written opinion as of this writing. But it is worth noting that the court issued its reversal of the injunction the very next day, even before the opinion was released, indicating they were not having any trouble deciding the injunction itself was inappropriate.

The first economic question is how soon feeders or packers will be able to import cattle. USDA Secretary Johanns said at a Friday morning news conference that he hopes within days to see cattle crossing the border. He emphasized that APHIS, FSIS, U.S. Customs as well as Canadian officials will be checking and double-checking to make sure any cattle meet the Minimal Risk Rule requirements as spelled out in the regulations. That includes each animal sporting an individual Canadian identification tag.

First policy question: how will this affect the Billings trial due to start July 27th in the Eighth District court before Judge Cebull? As Johanns indicated when asked the question, the ball is in R- CALF's court (no pun intended). Johanns said if the trial proceeds, USDA will be ready.

Another common legal question: Can Cebull issue another injunction to keep the border closed? My legal sources confirm that Cebull would have to find other legal grounds to issue an injunction than the ones the Ninth has rejected. They also said the only real legal grounds for challenging a government agency is that the agency has blatantly violated its enabling statutes or been "arbitrary and capricious." Anyone who has read R-CALF's suit against the government can tell you that last phrase was just about worn out in their brief. They have durn sure used up that alley and any other alleys are so far out even other lawyers can't think of them offhand.

So will R-CALF pack up its chuckwagon and go back to the home ranch? The thinking I'm hearing is that they've already invested hundreds of thousands of dollars in legal fees and payments to "expert" witnesses. Even if their legal case has been slammed back pretty hard, they will most likely go to trial and put on a dog and pony show for the publicity it will bring.

Which brings us to a critical question. R-CALF has tried all kinds of things to attempt to damage consumer confidence in beef. Thankfully, up to now consumers have demonstrated more common sense and more understanding of the science than R-CALF has. Given the damage to the financial conditions of packers, feeders and ranchers R-CALF has inflicted and the export of packing capacity they have forced from the U.S. to Canada, how far will R-CALF carry their dog and pony show?

Their attorneys have promised new evidence. The well-known, validated and replicated science has already been established by USDA. Most of whatever other evidence R-CALF could dredge up could either be the kind of unreplicated, marginally applicable hamster and mouse stuff they put in their original suits; the testimony of academics who believe the only risk they want to take is zero risk, like later declarations filed or the tortured statistical analyses based on unsupportable assumptions that Canada is the biggest source of BSE prions since the UK.

If the legal case is shaky or even lost at this point, R-CALF could do the entire beef industry a favor and argue its legal case in a subdued, factual manner and go home. We don't need more sensational attacks on consumer confidence in beef. We don't need any more financial damage inflicted on the beef production chain that is trying to market our product. We don't need any more ill will engendered with one of our biggest trading partners. We don't need any more excuses for the Japanese, South Koreans and other former trading partners to drag their feet on reopening borders, reasoning they don't need to respect science and common sense when we don't.

There is still another threat. Some weeks ago, R- CALF filed a motion for Summary Judgment, asking Cebull to make the injunction permanent and to include boxed beef in the ban. Cebull has not responded, and the Ninth overturning his case so far further distances that option. But nothing's impossible.

To give you some idea as to how divorced from reality R-CALF's position in all this has been, their attorney Russell Frye is reported to have argued to the Ninth that there was "no harm" in waiting for more information to better quantify any risk to animals or humans. No harm? Talk about never- never land. Tell the packinghouse workers who have had no job or drastically reduced hours "no harm." Tell the cattlemen who have no plant to sell cattle to "no harm." Tell the feeders who wonder if the plants on reduced hours now will be around in six months or a year from now to sell cattle to "no harm." Tell the feeders and packers who marketed to the Asian markets for years "no harm." Tell the ranchers who wonder if their local feedyard will be around to sell to "no harm."

What it boils down to is R-CALF only sees or cares about their own little chicken coop. The rest of the world might as well not exist.

What percentage of consumers do you suppose have not heard the unfounded allegations against beef, especially beef from Canada, to their health and well-being? This morning's page three story in the Colorado Springs Gazette, ended with Cebull's immortal words, "presents a genuine risk of death for U.S. consumers." How do you calculate the damages from those words spread across the country over and over again. On R-CALF's side of the ledger will those kinds of transgressions be entered. But no one knows the amount to charge.

Next time: Most likely, by the beginning of the week the Ninth will have rendered their detailed opinion. We will know then more about how they viewed this case and what influence it might have on Judge Cebull's handling of the July 27th trial in Billings.

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