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

• Decision Date: 02 March 2005
• Docket Number: No. CV-05-06-BLG-RFC.,CV-05-06-BLG-RFC.
• Citation: 359 F.Supp.2d 1058
• Parties: RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, and Mike Johanns, in His Capacity as the Secretary of Agriculture, Defendants.
• Court: U.S. District Court — District of Montana

359 F.Supp.2d 1058

RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, and Mike Johanns, in His Capacity as the Secretary of Agriculture, Defendants.

No. CV-05-06-BLG-RFC.

United States District Court, D. Montana, Billings Division.

March 2, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

A. Clifford Edwards, Taylor S. Cook, Edwards Frickle Anner-Hughes & Cook, Billings, MT, Russell S. Frye, William L. Miller, Collier Shannon Scott, Washington, DC, for Plaintiff.

William W. Mercer, Mark Steger Smith, Office of the U.S. Attorney, Scott G. Gratton, John W. Ross, Brown Law Firm, Billings, MT, Philip C. Olsson, Patricia E. Pahl, Olsson Frank & Weeda, Donna S. Fitzgerald, Lisa A. Olson, Marcia Tiersky, James J. Gilligan, Daniel Meron, Mayer Brown Rowe Maw LLP, Thomas L. Sansonetti, Washington, DC, for Defendants.

OPINION

CEBULL, District Judge.

BACKGROUND

This case concerns a decision by the United States Department of Agriculture ("USDA") Animal and Plant Health Inspection Service ("APHIS") to lift a ban on the importation of live cattle and edible bovine products from Canada for human consumption. A final rule was published on January 4, 2005, titled "Bovine Spongiform Encephalopathy, Minimal Risk Regions and Importation of Commodities; Final Rule and Notice," 70 Fed.Reg. 460 (the "Final Rule"). In the Final Rule, the USDA reversed a May 29, 2003, APHIS decision banning imports of cattle and edible bovine products from Canada, after a Canadian dairy cow was confirmed to have bovine spongiform encephalopathy ("BSE"), commonly known as "Mad Cow Disease." The Final Rule is scheduled to go into effect on March 7, 2005, and Plaintiff has filed an Application for Preliminary Injunction, seeking to enjoin the Final Rule until the lawfulness of the Rule can be reviewed by this Court.

BSE is a degenerative, invariably fatal neurological disorder of cattle that results from infection by an unconventional transmissible agent. BSE was not known to exist in the United States until the discovery in late 2003 of an infected dairy cow in Washington State that had previously been imported from Canada. See 68 Fed.Reg. 62,386 (November 4, 2003). Eating meat products contaminated with the agent for BSE is believed to cause variant Creutzfeldt-Jakob Disease ("vCJD") in humans, a degenerative, invariably fatal neurological disease for which there is no known cure. Both BSE and vCJD are generally thought to result from infection with a type of mis-formed protein called "prions."

Eating contaminated bovine meat and other products is believed to have resulted in the death of over 100 people in the United Kingdom and at least one person in the United States. Because of the incurable nature of this degenerative disease, fears about Mad Cow Disease decimated the market for beef from the United Kingdom in the 1990s and had a substantial adverse effect on demand for beef in the United States. Moreover, fears that consumption of beef from the United States carries a risk of contracting vCJD because of Canadian cattle or beef products imported into the United States caused the largest foreign export customers of American beef, Japan and Korea, to cut off imports of beef from the United States. See generally Declaration of John J. VanSickle, Ph.D., Director of International Agricultural Trade and Policy Center of the University of Florida, Exhibit 6 to Plaintiff's Memorandum.

On May 29, 2003, the USDA issued regulations that include Canada on a list of regions where BSE is known to exist, based on a case of BSE in the Province of Alberta reported by the Canadian Food Inspection Agency (CFIA) on May 20, 2003, 68 Fed.Reg. 31,939, 31,940 (May 29, 2003). Those regulations prohibit importation of ruminants, as well as importation of meat, meat products, and certain other products and byproducts of ruminants, that have been in regions where BSE is known to exist. Id. The regulations provide that the Administrator or APHIS may issue specific permits for ruminants or ruminant products to be brought into the United States in specific cases, where the Administrator determines that the action will not endanger livestock or poultry in the United States. Id.

The effect of this May 29, 2003 rule was that Canadian cattle and Canadian beef were banned from importation into the United States. On August 8, 2003, Secretary of Agriculture Ann Veneman announced the USDA would grant permits for the importation of a limited number of meat products from Canada, including boneless bovine meat from cattle under 30 months of age at the time of slaughter, boneless veal calves under 36 weeks, and fresh or frozen bovine liver. Attachment J to Exhibit 5 of Plaintiff's Memorandum.

On November 4, 2003, the USDA commenced rulemaking to amend these regulations regarding the importation of animals and animal products, to create a new category of regions that present "a minimal risk of introducing" BSE into the U.S. via live ruminants and ruminant products, and to place Canada in this new category. 68 Fed.Reg. 62,386 (the "Proposed Rule"). The USDA proposed to allow the importation of certain live ruminants and ruminant products and byproducts from such regions under certain conditions. This included fresh meat from bovines less than 30 months of age, fresh bovine liver, and fresh bovine tongues. Id. at 62,394-95. Specific requirements for the slaughtering of cattle and processing the meat were included in the proposal. Id.

The USDA re-opened the comment period on the Proposed Rule on March 8, 2004, in part to acknowledge the detection of BSE in a Canadian-origin cow in Washington State, which occurred after publication of the Proposed Rule and the USDA Risk Analysis for the Proposed Rule. 69 Fed.Reg. 10,633 (March 8, 2004). Among other things, that notice stated: "We now believe it would be necessary to require that beef imported from BSE minimal-risk regions be derived only from cattle less than 30 months of age, provided the equivalent measures are in place to ensure that SRMs ["specific risk materials" — skull, brain, vertebral column, spinal cord, and other neurological materials] are removed when the animals are slaughtered, and that such other measures as are necessary are in place. We believe such measures are already being taken in Canada. We invite comment from the public regarding this change to the provision we proposed in November 2003 regarding the importation of beef." Id. at 10,635. Plaintiff and over 3000 others submitted written comments on the proposal. 70 Fed.Reg. 465.

On April 26, 2004, this Court issued a Temporary Restraining Order prohibiting the USDA from permitting importation from Canada of all edible bovine meat products beyond those authorized by the USDA's action of August 8, 2003 from cattle under the age of 30 months. On May 5, 2004 that Temporary Restraining Order was converted into a preliminary injunction, that was set to expire five days after Plaintiff is notified of final agency action on the rulemaking proposed on November 4, 2003, 68 Fed.Reg. 62,386, and reopened on March 8, 2004, 69 Fed.Reg. 10,633.

On December 29, 2004, then Secretary of Agriculture Veneman announced the issuance of a final rule creating a category of regions with minimal risk BSE, setting conditions for importation of ruminants and of meat and other ruminant products from such regions, and naming Canada as the sole region with that classification. A Final Rule was published on January 4, 2005, titled "Bovine Spongiform Encephalopathy, Minimal Risk Regions and Importation of Commodities; Final Rule and Notice," 70 Fed.Reg. 460.

More importantly, on December 29, 2004, the CFIA announced publicly that another cow in Alberta had been tentatively identified as having BSE. That diagnosis was confirmed on January 5, 2005. On January 11, 2005, CFIA announced that a fourth cow from Alberta, this one six years and nine months old, had been confirmed to have BSE. Bullard declaration, Exhibit 5 at 7-8 and Attachments L-M to Plaintiff's Memorandum. Neither the discovery of a BSE-infected Canadian-born cow in Washington State in December 2003, nor the discovery of additional BSE-infected cows in Canada at the end of 2004 and beginning of 2005, caused the USDA to revise or seriously reconsider its determination that opening the border to Canadian cattle and meat would present little risk to U.S. animals, human consumers, and the livestock industry. The Final Rule is to become effective on March 7, 2005.

Plaintiffs have filed an Application for Preliminary Injunction in order to prevent the import of live cattle less than 30 months of age and most kinds of bovine meat and other tissue from Canada for human consumption from Canada, which is expected to take effect on March 7, 2005.

STANDARD OF REVIEW

The traditional criteria for granting preliminary injunctive relief are: (1) a substantial likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiff if injunctive relief is not granted; (3) a balance of hard ships favoring the plaintiff; and (4) advancement of the public interest. Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1201 (9th Cir.1980); Textile Unlimited Inc. v. A.B.M.H. and Co., Inc., 240 F.3d 781, 786 (9th Cir.2001). However, The Ninth Circuit has ruled that the moving party may meet its burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that the plaintiff's papers raise "serious questions" on the merits and the balance of hardships tips sharply in its favor. Los Angeles Mem'l Coliseum Comm'n, 634 F.2d at 1201; Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 840-41 (9th Cir.2001). These two tests represent a sliding scale where the required degree of...