Ranchers Cattlemen Action v. U.S. Dept. of Agr.

• Decision Date: 28 August 2007
• Docket Number: No. 06-35512.,06-35512.
• Citation: 499 F.3d 1108
• Parties: RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA, Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 1108

RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA, Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, Defendant-Appellee.

No. 06-35512.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2007.

Filed August 28, 2007.

Russell S. Frye, FryeLaw PLLC, Washington, DC, for appellant.

Joshua Waldman and Mark B. Stern, Department of Justice, Civil Division, Washington, DC, for appellees.

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

Edward J. Farrell, Blank Rome LLP, Washington, DC, for amicus Canadian Cattlemen's Association.

Simeon M. Kriesberg, Mayer, Brown, Rowe & Maw LLP, Washington, DC, for amicus Alberta Beef Producers.

Philip C. Olsson, Olsson, Frank and Weeda, P.C., Washington DC, and John W. Ross, Brown Law Firm, P.C., Billings, MT, for amici National Meat Association et al.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CV-05-00006-RFC.

Before: CYNTHIA HOLCOMB HALL and MILAN D. SMITH, JR., Circuit Judges, and KEVIN THOMAS DUFFY,^* Senior Judge.

HALL, Senior Circuit Judge:

This case involves a challenge to the government's regulation of Canadian cattle imports in the wake of the "mad cow disease" scare of the late 1990s. Ranchers Cattlemen Action Legal Fund United Stockgrowers of America ("R-CALFUSA" or "R-CALF") argues that the United States Department of Agriculture ("USDA") issued an arbitrary and capricious rule relaxing a ban on Canadian beef and cattle imports. See Bovine Spongiform Encephalopathy; Minimal-Risk Regions and Importation of Commodities, 70 Fed.Reg. 460 (January 4, 2005) (hereinafter "the Final Rule").

R-CALF argues that recent incidents of mad cow disease in the Canadian herd, and in American cows imported from the Canadian herd, cast doubt on the agency's rule-making procedure. With additional references to scientific studies and international regulations, R-CALF challenges the agency's assessment that the "multiple, interlocking safeguards" implemented by both the United States and Canada will be effective at preventing human infection domestically.

The district court granted summary judgment to the USDA, and we have jurisdiction to review this order under 28 U.S.C. § 1291. The facts have been provided in prior related decisions and will not be recited exhaustively here. See Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agric., 359 F.Supp.2d 1058 (D.Mont.) (hereinafter "R-CALF I"), rev'd 415 F.3d 1078 (9th Cir.2005) (hereinafter "R-CALF II").

We affirm.

Background

Commonly referred to as "mad cow disease," Bovine Spongiform Encephalopathy ("BSE") is a degenerative neurological disease that was first discovered in 1986 and has since infected more than 187,000 cattle worldwide, with 95 percent of the cases occurring in England. In the mid-1990s, public health officials discovered that cattle feeding practices were the likely cause of an outbreak of BSE in England. At the time, cattle feed typically contained recycled or "rendered" cattle parts that gave it a higher protein content.¹

In 1996, the British government discovered that consumption of BSE-contaminated meat could cause variant Creutzfeld-Jakob Disease (vCJD) in humans. There have been approximately 150 human cases of vCJD, including one case in the United States in a woman who had probably contracted the disease while living in England. Scientists are still learning how these diseases develop, incubate and spread. See R-CALF II, 415 F.3d at 1086.

The Food and Drug Administration and the USDA responded to the BSE outbreak with new regulations.² These rules prohibited the use of mammalian proteins in cattle feed, see 21 C.F.R. § 589.2000, and prohibited the use of "specified risk materials" — such as cattle brains, spinal cords, and nerve tissue — in human food, see 9 C.F.R. § 310.22. The USDA, working closely with the World Organization for Animal Health, developed guidelines and proposed protective measures to prevent the spread of BSE to the United States. See 70 Fed.Reg. at 463.³ Chief among these measures was a ban on imports of all cattle products from countries where BSE was known to exist. See 9 C.F.R §§ 93.401, 94.18 (2003). The USDA added Canada to this list of countries in May 2003, after a cow in Alberta was diagnosed with BSE. Change in Disease Status of Canada Because of BSE, 68 Fed.Reg. 31939 (May 29, 2003). Though Canada had instituted its own feed ban in 1997, it was likely that the cow had been exposed before the ban and that the disease had incubated for a period of years.⁴ The USDA estimates that the disease has an incubation period of two to eight years. 70 Fed.Reg. at 470.

In August 2003, the agency 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. See 70 Fed.Reg. at 536. In November 2003, it also announced a proposed rule creating a new category of "minimal risk" regions — a category that would include Canada and possibly other countries. See Bovine Spongiform Encephalopathy; Minimal Risk Regions and Importation of Commodities, 68 Fed.Reg. 62386 (Nov. 4, 2003).

Shortly before the comment period on this rule was to end, a Canadian-born cow in Washington state was diagnosed with BSE, likely caused by feed ingested before the Canadian feed ban went into effect. The USDA reopened the comment period in March with an expiration date of April 7, 2004. See Bovine Spongiform Encephalopathy; Minimal Risk Regions and Importation of Commodities, 69 Fed.Reg. 10,633 (Mar. 8, 2004). By the close of the comment period, the agency had received 3,379 comments. See 70 Fed.Reg. at 465.

On January 4, 2005, after a struggle with R-CALF over an interim regulation,⁵ the USDA published the Final Rule, which modified existing regulations to allow imports of Canadian cattle under 30 months of age for purchase by feedlots or meat packing companies. See id. at 548; 9 CFR §§ 93.420, 93.436, 94.0, 94.18, 94.19, 95.4; R-CALF II, 415 F.3d at 1090 n. 10. The rule at this stage also allowed in Canadian beef products from cattle of all ages. 70 Fed.Reg. at 494.

Shortly after the rule was published, two older cows in Alberta were diagnosed with BSE, and the USDA attributed the disease to contaminated feed manufactured before the Canadian feed ban. The USDA then announced its intention to suspend the part of the rule that would relax the ban on meat from cattle over 30 months old. See Bovine Spongiform Encephalopathy; Minimal-Risk Regions and Importation of Commodities; Partial Delay of Applicability, 70 Fed.Reg. 12,112 (March 11, 2005).

The Final Rule was set to go into effect on March 7, 2005, but was blocked by a preliminary injunction from the district court in R-CALF I, a ruling stemming from related proceedings in this case.

Prior Proceedings

On January 10, 2005, six days after the Final Rule was published, R-CALF filed a complaint alleging that the USDA's rulemaking violated the Administrative Procedure Act (APA), the Regulatory Flexibility Act, and the National Environmental Policy Act. It applied for a preliminary injunction, which the district court granted on March 2, 2005. See R-CALF I, 359 F.Supp.2d at 1074. The district court found that R-CALF had demonstrated a likelihood of success on its claim that the rule was arbitrary and capricious, in violation of the APA. See 5 U.S.C. § 706(2). While an initial appeal to this court was pending, the parties filed cross-motions for summary judgment with the district court.

We reversed the preliminary injunction ruling on July 14, 2005, and issued a final amended opinion on August 17, 2005. See R-CALF II, 415 F.3d 1078. (We found that the district court had not accorded adequate deference to the USDA's determinations and concluded that the agency "had a firm basis for determining that the resumption of ruminant imports from Canada would not significantly increase the risk of BSE to the American population." Id. at 1095.

In light of this order and opinion, the district court postponed, and ultimately never scheduled, a hearing on the cross-motions for summary judgment. It denied R-CALF's motion for summary judgment and granted summary judgment to the USDA on April 5, 2006.

The district court's order set out the deferential standard of review and provided only one paragraph of analysis. It quoted this court's holding in R-CALF II, and then stated: "Based upon this, the District Court's hands are tied. The Ninth Circuit has instructed this court to `abide by this deferential standard,' and `respect the agency's judgment and expertise.' " It offered no analysis of the record, which had been supplemented several times while the preliminary injunction appeal was pending.

R-CALF filed its timely appeal of the district court's decision on June 2, 2006. Only the APA claim is before us.

A Second Remand is Unnecessary

R-CALF argues that the district court improperly determined it was bound by our decision reversing the preliminary injunction, and therefore R-CALF requests that we remand to the district court for analysis of the record that was developed in support of the motion for summary judgment.

R-CALF correctly points out that the ruling on the motion for a preliminary injunction "leaves open the final determination of the merits of the case." Ross-Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 194 (9th Cir.1953). This rule acknowledges that "decisions on preliminary injunctions are just that — preliminary — and must often be made hastily and on less than a full record." S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1136 (9th Cir.2004) (citation omitted).

Accordingly, the district court should abide by "the general rule" that our decisions at the preliminary injunction phase do not constitute the law of the...