Ranchers Cattleman Action v. U.S. Dept. of Agric.

• Citation: 415 F.3d 1078
• Decision Date: 25 July 2005
• Docket Number: No. 05-35264.,05-35264.
• Parties: RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCK-GROWERS OF AMERICA, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Animal and Plant Health Inspection Service; Mike Johanns, in his capacity as the Secretary of Agriculture, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1078

415 F.3d 1078

RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCK-GROWERS OF AMERICA, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Animal and Plant Health Inspection Service; Mike Johanns, in his capacity as the Secretary of Agriculture, Defendants-Appellants.

No. 05-35264.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2005.

Filed July 25, 2005.

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Mark B. Stern, Civil Division, U.S. Department of Justice, Washington, DC, for defendants-appellants.

Russell S. Frye, Frye Law PLLC, Washington, DC, for plaintiff-appellee.

Maureen E. Mahoney, Latham & Watkins LLP, Washington, DC, for amicus curiae Government of Canada.

Gregory G. Garre, Hogan & Hartson LLP, Washington, DC, for amici curiae National Cattlemen's Beef Association, American Farm Bureau Federation, National Pork Producers Council, 29 State Cattlemen's Associations, 18 State Farm Bureaus, and 9 Individual Cattle Producers.

Sarah Weinstein, Mayer, Brown, Rowe & Maw LLP, Palo Alto, CA, for amicus curiae Alberta Beef Producers.

Michael B. Gillett, McElroy Law Firm, PLLC, Seattle, WA, for amicus curiae Easterday Ranches, Inc.

Joseph O. Click, Blank Rome LLP, Washington, DC, for amici curiae Canadian Cattlemen's Association and Its Affiliated Organizations.

Jonathan L. Abram, Hogan & Hartson, Washington, DC, for amici curiae American Meat Institute, North American Meat Processors, Southwestern Meat Association, Eastern Meat Packers Association, American Association of Meat Processors, National Restaurant Association, and United Food and Commercial Workers.

John O'Brien, Kerr Brosseau Bartlett O'Brien, LLC, Denver, CO, for amicus curiae Pioneer, Inc.

Gregg Spyridon, Spyridon, Koch, Palermo, & Dornan, LLC, Metairie, LA, for amici curiae the Camelid Alliance, et al. Alan Charles Raul, Sidley Austin Brown & Wood LLP, Washington, DC, for amicus curiae Tyson Foods, Inc.

David A. Domina, Domina Law pc llo, Omaha, NE, for amici curiae 67 National, State, and Local Consumer and Research Groups, Public Interest Organizations, Farm and Ranch Organizations, and Local and Private Organizations.

Christian D. Tweeten, Chief Civil Counsel, Montana Attorney General, Helena, MT, for amici curiae States of Montana, Connecticut, Nevada, New Mexico, North Dakota, and South Dakota.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CV 05-006 RFC.

Before TASHIMA, PAEZ, and CALLAHAN, Circuit Judges.

TASHIMA, Circuit Judge.

We must decide whether the district court erred in issuing a preliminary injunction prohibiting the implementation of a regulation of the United States Department of Agriculture ("USDA") permitting the resumption of the importation of Canadian cattle into the United States. We conclude that it did and therefore reverse the district court.

At the heart of this case lies a relatively new cattle disease caused by the practice of feeding cows, herbivores by nature, the brains and other central nervous system tissues of other cows. Technically known as Bovine Spongiform Encephalopathy ("BSE"), this disease, popularly known as mad cow disease, has spread from farms in England to 25 countries around the world since its discovery in 1986.

As BSE spread throughout the globe during the past 20 years, USDA instituted a policy of barring the importation of ruminants¹ and ruminant products from countries where BSE was known to exist. In a final rule entitled Bovine Spongiform Encephalopathy: Minimal Risk Regions and Importation of Commodities; Final Rule and Notice, 70 Fed.Reg. 460 (Jan. 4, 2005) (the "Final Rule"), USDA relaxed this longstanding practice, allowing limited ruminant imports from Canada, despite the fact that two cases of BSE had been found in Canada at the time.

Plaintiff-Appellee, Ranchers Cattlemen Action Legal Fund United Stockgrowers of America ("R-CALF"), successfully blocked the implementation of the Final Rule, convincing the court below to find the rule arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), and to issue a preliminary injunction prohibiting its enforcement. See Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agric., 359 F.Supp.2d 1058 (D.Mont.2005) ("R-CALF I"). Because we conclude that the district court applied an incorrect legal standard, we reverse.²

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Bovine Spongiform Encephalopathy

BSE was first diagnosed in England in the late 1980s. This new disease spread rapidly, infecting thousands of English cattle and eventually reaching countries all over the globe. Although the disease has since been largely contained, it continues to persist, and it resides at the center of the current lawsuit.

BSE is a species of Transmissible Spongiform Encephalopathy ("TSE"), a family of degenerative neurological diseases that affects a wide range of animals, including sheep, goats, and deer, as well as humans. Although there remains some dispute, it is widely believed that BSE and other TSEs are caused by prions, abnormally shaped and extremely hardy proteins that were only recently discovered.

TSEs have a debilitating neurological impact on their victims. After an incubation period of months or years, the diseases create myriad tiny holes in the brain, slowly deteriorating their victims' mental and physical abilities until death eventually results. In cattle, BSE has an incubation period of two to eight years, during which time the infected animal shows no outward sign of the illness. Once the disease progresses, however, infected cattle begin showing symptoms within two to three months. These symptoms can include nervousness or aggression, abnormal posture, impaired coordination, decreased milk production, and loss of body condition despite continued appetite.

At the height of the BSE epidemic in the United Kingdom, tens of thousands of cattle were confirmed to have the disease, and by some estimates the number of infected cattle in the United Kingdom may have reached into the millions. All told, there have been more than 187,000 confirmed cases of BSE in cattle worldwide, over 95 percent of which have occurred in the United Kingdom.

Epidemiological investigations in England quickly determined that BSE was likely spread through cattle feed that was infected with the BSE agent. The blame for the contaminated feed fell squarely on the practice, common in Europe at the time, of creating high-protein cattle feed through the "recycling" of otherwise unusable cattle parts. This process is known as "rendering," and involves placing animal protein in large tanks and cooking at temperatures high enough to kill most microorganisms.³ Although the rendering process is able to eliminate most bacterial and viral diseases, the BSE agent is resistant enough to heat and other sterilization processes to withstand the conversion into feed. Infected tissue from a single infected cow, when rendered into cattle feed, could therefore be fed to hundreds of cattle exposing them all to the possibility of infection.

Several years after the discovery of BSE, the disease became a matter of much more serious concern. In 1996, the British government announced that a new form of TSE in humans, variant Creutzfeldt-Jakob Disease ("vCJD"), was likely caused by human consumption of cattle products that were contaminated with the BSE agent. To date, only approximately 150 cases of vCJD have been identified worldwide, the vast majority of which occurred in England during the height of its BSE epidemic. Although vCJD has been diagnosed in two people in North America, in both cases the disease is believed to have been contracted in England; no case of vCJD has ever been linked to North American beef.⁴

Because BSE is a relatively new disease, and because prions are a relatively recent scientific discovery, the state of knowledge surrounding BSE is somewhat incomplete. Efforts to understand the disease fully have been hampered because current testing methodology is not particularly effective in identifying it. No live animal test for BSE exists, meaning that cows must be slaughtered before they can be tested. In addition, the tests that do exist are unable to detect the disease during the vast majority of the time a cow is infected. The earliest point at which current tests can detect the disease is two to three months before an animal starts showing clinical signs of infection. BSE has an incubation period that lasts for four to five years on average, however, during which the animal carries the disease but shows no outward symptoms.

Given these testing limitations, there remain a number of open public health questions surrounding BSE, in particular concerning the means through which the disease can be transmitted. The only documented method of BSE transmission is through the consumption of feed contaminated with the BSE agent. Some research involving both BSE and other TSEs, however, suggests that BSE may be transmitted through means other than contaminated feed. For example, in experiments on sheep, mice, and hamsters, both BSE and scrapie, a TSE disease that affects sheep, were transmitted through whole blood transfusion. At least one case of vCJD is also believed to have been transmitted through human blood transfusion. Other studies have suggested that prions can be exchanged through saliva, while still others suggest that BSE may be transmitted maternally.

Despite the highly infectious nature of the BSE agent, evidence suggests that meat from cows infected with BSE may be safely consumed by humans because BSE does not occur in all parts of its host. Specifically, the BSE agent appears not to exist in muscle tissue of cattle. Rather, the disease is generally confined to the central nervous...