(10/18/2005)

23 Organizations File Amicus Curiae Brief
to Support Rehearing of Case Before Entire 9th Circuit

(Billings, Mont.) – Almost two dozen national, state, regional and county organizations have jointly filed an amici curiae, or ‘friend-of-the-court’, brief in the 9th U.S. Circuit Court of Appeals to show support for R-CALF USA’s petition for a rehearing in its litigation that challenges the U.S. Department of Agriculture’s (USDA’s) Final Rule on bovine spongiform encephalopathy (BSE) minimal-risk regions.

R-CALF USA filed a lawsuit against USDA on Jan. 10, 2005. On March 2, the U.S. District Court for the District of Montana granted R-CALF USA’s request for a preliminary injunction that halted implementation of USDA’s Final Rule, scheduled to reopen the Canadian border on March 7. On March 3, the U.S. Senate voted 52-46 to overturn the Final Rule. On March 17, the USDA appealed the preliminary injunction, and on July 14, a three-judge panel for the 9th Circuit issued an order that reversed the preliminary injunction, which reopened the Canadian border. Also in the 9th Circuit: on Sept. 8, R-CALF USA filed its petition for a rehearing of the panel’s decision, and on Sept. 15, attorneys general for six states filed their own friend-of-the-court brief to support a rehearing before the full appellate court.

The 31-page brief notes that U.S. consumers each eat an average of 62 pounds of beef per year, more than any other foodstuff. The brief reminds the court that USDA is a public-safety agency, charged with protecting both public health and animal health, yet “is vigorously seeking to dismantle the public and animal (import) health safety standards which have successfully prevented diseases such as avian flu, foot-and-mouth disease, blue tongue, brucellosis, and now BSE, from entering the U.S. and contaminating its food supply.”

The brief states the 9th Circuit’s three-judge panel wrongfully reversed the preliminary injunction, that its standard of review was an abuse of discretion, that the panel accepted USDA assertions that do not withstand more detailed scrutiny, and that “the purpose of a judicial review is not to rubber-stamp agency decisions, but ‘to check arbitrary or inconsistent administrative action’ ... ‘The preliminary injunction should have been allowed to stand while the relaxed rules on imports from Canada could be fully evaluated by the District Court.”

The brief also states that USDA “did not rely on hard data about risks, but rather on speculation ... and subjective conclusions that the risks are acceptable. The court thus owes USDA’s action no deference ... Moreover, recent scientific developments and recent actions by USDA only heighten the need for caution concerning BSE ... USDA conceded it has no objective standards for determining whether to allow imports from a country known to have BSE, rather it wants the ‘flexibility’ of a ‘case by case’ approach from cattle it believes are an ‘overall minimal risk’.”

The brief argues that “The Rule lacks precision, methodology, objectivity, and science. The Rule’s terms are the stuff of speculation; not the data of science ... USDA admits noncompliance with its feed ban creates a pathway for entry (of BSE), yet assumes, or hopes, compliance is high ... The GAO (Government Accountability Office) released a ... report finding little evidence of effective feed ban compliance. USDA omitted this report from the Administrative Record, though it was released to the public in February of 2005.”

The brief concludes that the three-judge panel’s opinion “produces extremely negative ramifications and constitutes a rubber stamp of USDA’s rule. Protecting the nation’s cattle herd and the public from BSE is critical. The USDA rule therefore deserves a critical review, rather than blind acceptance of USDA assertions.”