Ranchers Cattlemen Action Legal Fund v. Usda

• Decision Date: 03 July 2008
• Docket Number: No. CIV 07-1023.,CIV 07-1023.
• Parties: RANCHERS CATTLEMEN ACTION LEGAL FUND; United Stockgrowers of America; Herman R. Schumacher; Robert P. Mack; Ernie J. Mertz; Wayne J. Nelson; South Dakota Stockgrowers Association; Center for Food Safety; Consumer Federation of America; Creutzfeldt-Jakob Disease Foundation, Inc.; Food & Water Watch; and Public Citizen, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service; Charles F. Conner, in his capacity as the Acting Secretary of Agriculture, Defendants.
• Court: U.S. District Court — District of South Dakota

Page 995

566 F.Supp.2d 995

RANCHERS CATTLEMEN ACTION LEGAL FUND; United Stockgrowers of America; Herman R. Schumacher; Robert P. Mack; Ernie J. Mertz; Wayne J. Nelson; South Dakota Stockgrowers Association; Center for Food Safety; Consumer Federation of America; Creutzfeldt-Jakob Disease Foundation, Inc.; Food & Water Watch; and Public Citizen, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service; Charles F. Conner, in his capacity as the Acting Secretary of Agriculture, Defendants.

No. CIV 07-1023.

United States District Court, D. South Dakota, Northern Division.

July 3, 2008.

Russell S. Frye, Frye Law PLLC, William Miller, William Miller Group, PLLC, Washington, DC, Thomas P. Tonner, Thomas M. Tobin, Tonner, Tobin & King, Aberdeen, SD, for Plaintiffs.

Cheryl Schrempp Dupris, Pierre, SD, Donna S. Fitzgerald, Lisa Ann Olson, U.S. Department of Justice, Washington, SD, Diana J. Ryan, U.S. Attorney's Office, Sioux Falls, SD, for Defendants.

MEMORANDUM OPINION AND ODER ON MOTION FOR PRELIMNARY INJUNCTION

LAWRENCE L. PIERSOL, District Judge.

This matter is before the Court for a decision on the plaintiffs' Motion for Preliminary Injunction. The plaintiffs ("Plaintiffs") filed a Verified Complaint for Declaratory and Injunctive Relief against the United States Department of Agriculture ("USDA"), Animal and Plant Health Inspection Service ("APHIS"), and the Acting Secretary of Agriculture, to prevent implementation of a final rule published on September 18, 2007: "Bovine Spongiform Encephalopathy; Minimal-Risk Regions; Importation of Live Bovines and Products Derived From Bovines; Final Rule" 72 Fed. Reg. 53,314 (the "OTM [over thirty months] Rule"). In the OTM Rule, APHIS relaxed restrictions on imports of live cattle and edible bovine products from "minimal risk" regions (Canada), allowing for the first time since May 2003 the importation of cattle for any purpose, provided they were born on or after March 1, 1999, and allowing imports of most edible products from Canadian cattle of any age. Plaintiffs seek to enjoin the OTM Rule, which went into effect on November 19, 2007. Shortly after the Complaint was filed, Plaintiffs filed the pending Motion for Preliminary Injunction.

The Court has considered the relevant portions of the administrative record, the parties' briefs, the amici briefs, oral arguments presented on Tuesday, February 19, 2008, and post-hearing briefs filed by the parties and amici.¹ For the following reasons, the Motion for Prehminary Injunction will be granted in part.

I. JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction of this proceeding under 28 U.S.C. § 1331 and 5 U.S.C. § 702. Under the Administrative Procedure Act ("APA"), the Court must not set aside agency regulations unless they are found to be arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. National Pork Producers Council v. Bergland, 631 F.2d 1353, 1359 (8th Cir.1980). An arbitrary and capricious agency rule exists if the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). This is a highly deferential standard of review. Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1317 (8th Cir.1981). The court cannot substitute its judgment for that of the agency, and affirmance is required if a rational basis exists for the agency's decision. Id.

When considering whether to grant a preliminary injunction, the Court must consider four factors: (1) the threat of irreparable harm to plaintiffs; (2) the state of the balance between this harm and the injury that granting the preliminary injunction will inflict on the defendants; (3) the probability of plaintiffs' success on the merits; and (4) the public interest. See Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). The Eighth Circuit rejected a construction of the "probability of success" factor requiring that the movant prove a greater than fifty per cent likelihood that he will prevail on the merits, reasoning that:

At base, the question [of whether preliminary relief should be granted] is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined. The equitable nature of the proceeding mandates that the court's approach be flexible enough to encompass the particular circumstances of each case. Thus, an effort to apply the probability language to all cases with mathematical precision is misplaced.

Id. at 113. Rather, the Eighth Circuit explained that "[i]n balancing the equities no single factor is determinative." Id. The likelihood that the movant will prevail on the merits "must be examined in the context of the relative injuries to the parties and the public." Id. The Eighth Circuit provided examples of the balancing and relative importance of various factors depending upon the circumstances of the case:

If the chance of irreparable injury to the movant should relief be denied is outweighed by the likely injury to other parties litigant should the injunction be granted, the moving party faces a heavy burden of demonstrating that he is likely to prevail on the merits. Conversely, where the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less.

Id.

II. BACKGROUND

The Animal Health Protection Act ("AHPA") gives the Secretary of the USDA broad discretion to regulate the importation of animals and animal products. It states that the Secretary "may" prohibit or restrict such importation "if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into or dissemination within the United States of any pest or disease of livestock." 7 U.S.C. § 8303(a)(1). APHIS is the agency within the USDA that regulates the importation of animals and animal products to guard against the introduction of various animal diseases in the United States. APHIS collaborates with other federal agencies to implement a coordinated response to Bovine Spongiform Encephalopathy ("BSE"), commonly referred to as "mad cow disease." Protection from the risks of BSE is carried out primarily by APHIS with respect to animal health, and by the USDA's Food Safety and Inspection Service ("FSIS") with respect to the food safety of meat.

BSE is a progressive and fatal neurological disorder of cattle. Although the agent that causes BSE has yet to be fully characterized, the theory that is most accepted in the international scientific community is that the agent is an abnormal form of a protein called a cellular prion protein. Scientists believe that the primary route of transmission between cattle requires that cattle ingest feed that has been contaminated with a sufficient amount of infected tissue from another animal. It is believed that cattle can develop BSE from exposure to as little as one milligram of infected tissue. (Doc. 19-2 at p. 11.) The USDA believes that this route of transmission can be prevented by excluding potentially contaminated materials, including tissues designated as "specified risk materials" ("SRMs"), from ruminant feed.

The background of regulations developed by the USDA to prevent the spread of BSE to the United States have been set forth by the Ninth Circuit in Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agric, 499 F.3d 1108 (9th Cir. 2007) ("R-Calf II"), and it need not be repeated at length here. In 1996, the British government discovered that consumption of BSE-contaminated meat could cause variant Creutzfeldt-Jakob Disease (vCJD) in humans. See id. at 1112. This is a chronic and fatal neurodegenerative disease. Approximately 200 cases of vCJD have been identified worldwide since 1996. As stated by the Ninth Circuit, "[c]hief among the USDA's measures to prevent BSE in the United States was a ban on imports of all cattle products from countries where BSE was known to exist." Id. Canada was added to this list in May 2003 when a cow in Alberta was diagnosed with BSE. See id.

In August 2003, the USDA "partially changed course and announced that certain `low-risk' cattle products could be imported from Canada, including meat from cows under 30 months of age." Id. APHIS completed a risk analysis regarding the possibility of resuming Canadian cattle and beef imports. In November 2003, it announced a proposed rule creating a new category of "minimal risk" regions — those that would present a minimal risk of introducing BSE into the United States via ruminants and ruminant products.² Canada was on the list based on its fulfillment of the three requirements for such regions. First, Canada maintained risk mitigation measures to prevent spread of BSE, including import restrictions on animals, animal products and feed, conducted surveillance for BSE at levels recommended by the Office International des Epizooties ("OIE"), also referred to as the World Organisation for Animal Health; and enforced an effective ban on feeding ruminant protein to ruminants. Second, it conducted an epidemiological investigation to confirm the adequacy of measures to prevent the further introduction or spread of BSE. Third, it took additional risk mitigation measures, as necessary, based on risk analysis of the outbreak.

The November 2003 proposed MMR Rule also proposed to permit imports from Canada of (1) cattle less than 30 months of age, and (2) meat from such cattle, subject to prescribed...