R-CALF USA, on Friday, filed a motion in U.S. District Court â€“ District of Montana to request a hearing before U.S. District Judge Richard F. Cebull in its litigation against the USDA regarding the agency's minimal risk rule issued in January 2005, which dealt with opening the United States' borders to cattle and beef products from countries affected by bovine spongiform encephalopathy.
On March 2, 2005, the District Court issued a preliminary injunction, which prevented USDA's Final Rule from being implemented and, in effect, continued a ban on the import of Canadian cattle and certain beef products into the United States. However, USDA appealed that decision, and in July 2005, the 9th U.S. Circuit Court of Appeals (9th Circuit) reversed the preliminary injunction, which reopened the Canadian border to live cattle under 30 months of age and beef from cattle under 30 months of age.
R-CALF USA's position is that the 9th Circuit decision does not limit, or eliminate, the need for oral arguments of the case and a ruling by the District Court on the summary judgment motions filed by both R-CALF USA and USDA.
"In fact," the motion states, "events since the briefing of the summary judgment motions only reinforce the need for this Court to review and vacate USDA's January 4, 2005 Final Rule allowing importation of cattle and beef from Canada."
R-CALF USA's motion explains that the facts in the case had not been fully developed when the 9th Circuit considered only the narrower question of whether R-CALF USA was entitled to a preliminary injunction while the merits of the entire case were still being developed in the District Court.
"Back in July, the 9th Circuit heard only some very limited facts that were presented during the March hearing before Judge Cebull, and since then, even more scientific information has been discovered about BSE, indicating that USDA should be exercising more caution about this risk, not less," explains R-CALF USA President and Co-Founder Leo McDonnell. "We're asking the District Court to resume its consideration of our case, and in our motion we've pointed out the numerous inconsistencies in USDA's actions that warrant a careful, critical review by Judge Cebull."
The motion also points out that the 9th Circuit decision did not address all of the evidence and arguments R-CALF USA has now presented in its challenge against the Final Rule, including the evidence that indicates "USDA's regulation of BSE has been guided by consideration of inappropriate factors rather than sound scientific judgmentâ€¦a desire to have open trade with Canada and the express financial impact on multinational meatpackersâ€¦"
The 9th Circuit says that federal agencies generally should be granted "deference" in their decision-making, but in this case, deference to some of USDA's conclusions simply is not warranted. Because the 9th Circuit did not address these considerations, R-CALF USA's motion argues the District Court should not feel bound by the 9th Circuit's conclusion that no quantification is needed of the risk of such a major, precedent-setting action as the Final Rule.
The motion also references two recent federal rulemakings that demonstrate USDA is not applying sound scientific judgment to the BSE issue, and the motion points to USDA's recent rule allowing the importation of beef from animals of any age from Japan (Japan Import Rule) â€“ despite the fact Japan has not implemented the minimal preventive measures USDA determined were necessary for imports from countries known to have BSE.