AFF Sentinel Vol.2, #38

After having used lawyers and the courts to bedevil the entire beef industry, as well as stymie the federal government for nearly two years, R-CALF is suddenly not very happy with what its strategies have yielded.

The majority of the beef industry has seldom preferred turning the fate of their industry over to attorneys and courts. As R-CALF is finding out, the legal eagles don't always drag home the right quarry in the condition desired. And now the organization's reaction demonstrates either a seriously deficient grasp of the situation or a sullen displeasure that things are not going according to its plan.

R-CALF's Leo McDonnell said in a statement that the Ninth Circuit's decision sets a "very troublesome precedent." He added that the decision "suggests that the USDA is subject to little or no constraints" in making import decisions.

Can he be serious? When was the last time the federal government did anything without hundreds of pages of justification, testimony and, in cases like these, scientific findings and discussions? The federal rule-making process is more likely to be overlong, overly cumbersome and replete with impact statements few taxpayers would care about. Statutes clearly spell out, as the Ninth's opinion emphasized, that USDA was not only within its statutory authority but adhered to the prescribed process in promulgating the Final Rule. In addition, the Ninth's opinion also noted that the presumption, by law, is that trade is to be allowed unless there is a necessary reason to disallow it. The USDA marshaled a considerable body of scientific and economic evidence to show why it reached the conclusion it did.

So why is the Ninth's decision to allow the established set of laws and regulations to operate as intended by Congress a "troublesome precedent" to McDonnell? Why does the already cumbersome machinery of federal rulemaking amount to "little or no constraints" to him?

It is because he shares the same problem all of his Liberal Activist Groups* (LAG) partners share. As a radical minority, they can't find enough other people to vote with them to change the laws of the land. So they resort to legal means to try to force governments to do what they want. And if they can match up their case with an activist judge inclined to make law rather than interpret it, they can make life difficult for the majority. Sometimes they can achieve legal precedents that affect everyone's ability to do business.

But obstructionism isn't enough. They want to have more control over international trade themselves rather than live under the established laws and regulations put in place through representative government. Granted, the normal process of lobbying or persuading Congress and voters is not an easy, fast, clean process. But it is rule of the majority. But the LAG hates the principle of rule by the majority, unless they are the majority. If they aren't, lawyers are perfectly willing to be hired out to try to tip the balance.

"Little or no constraints..." indeed. To those who knew very much about BSE and read the legal briefs R-CALF's attorneys filed, one thing became abundantly clear. Attorneys can quote just about any study or research they want to in a legal brief. It doesn't matter if the science has been verified by any other research in the world or if the so-called expert witness is the only one in the country who believes what he or she believes. There seems to be no burden of proof for legal briefs.

On the other hand, USDA was operating with significant "constraints." Their decisions were to be based on a solid, verified and confirmed body of evidence. They also had to act within the constraints of law and regulation. They weren't always perfect and at least their intent was to follow the procedure. R-CALF's intent was to thwart the procedure.

But McDonnell wasn't through. "...when USDA chooses to favor trade over protecting U.S. agriculture, concerned citizens will have little real opportunity to express disagreement with those policies and then challenge USDA decisions."

Mr. McDonnell, it would seem that your money has yielded lots of opportunity. R-CALF's own news release claims that the Administrative Record now numbers some 13,000 pages in this case - thanks in no small part to the many hundreds of thousands of dollars in legal fees R-CALF has expended to slow and stop the process.

How many of those 13,000 pages are R-CALF's complaints, suggestions, bought and paid-for testimony and calculations, advice to the government and accusations of malfeasance and ill-considered intent? The repetition of the words "arbitrary and capricious" must take up quite a few pages alone.

To help its case, R-CALF has also stood on stage with some of the industry's longest standing, most vociferous adversaries and attacked consumer confidence in beef, taken out ads in the flagship of liberal activist papers, the Washington Post, and issued dozens of news releases telling the world that the interlocking safeguards protecting beef consumers were inadequate. It would seem R-CALF has had every opportunity - and created a whole list of dubious additions. Just because the majority - and finally, even the legal system - isn't doing what R-CALF wants, it doesn't mean you haven't been talking or we haven't been listening. It means we don't agree with you.

Yet, still hoping that the Eighth District court in Billings will hold another hearing, R-CALF said it is "looking forward to the opportunity to present all of the merits of our case..." They are still complaining they haven't had enough time and space to present their claims.

They also said in their release that they are concerned about "import surges." Remember the "flood" of millions of Canadian cattle they claimed was poised to bury U.S. markets? It hasn't shown up yet. The USDA's AMS reported that in the first 11 days the border was open, 6,800 head of slaughter cattle and 7,340 head of feeder cattle were imported. The numbers may increase but it is doubtful the numbers will come close to averaging what they used to, since R-CALF has fathered a bigger and stronger Canadian packing industry and an exporting capability boosted to compete with us overseas.

It would appear that, so far, R-CALF hasn't seen anything that would change its mind. But we have seen a lot about how its collective mind works. Funny that word collective should come up. R-CALF thinks a lot like a union - allies itself with organizations that themselves have union ties. They oppose imports, rail against the industries that sell their product, feel they should control government decision making and oppose supply management and quality-control processes. We hear the AFL-CIO is looking for new groups to affiliate with them. Maybe R-CALF should sit down and see where their areas of agreement are, like they did with Public Citizen, Consumer's Union and Consumer Federation of America.

*Fringe activist groups like Public Citizen (Ralph Nader), Consumer's Union, Consumer Federation of America (Carol Tucker Foreman), Organization for Competitive Markets (OCM), Western Organization of Resource Councils (WORC), Greenpeace, Global Resource Council for the Environment (GRACE) and others opposing mainstream, free market capitalist agriculture.

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