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F.ood & H.ealth : & P.olitics Last Updated: Nov 23rd, 2006 - 10:37:18

9th Circuit Denies USDA's Request to Dismiss Case
Nov 23, 2006, 10:35

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Billings, Mont. The 9th U.S. Circuit Court of Appeals (9th Circuit) has denied the U.S. Department of Agriculture's (USDA's) Motion for Summary Affirmance, stating in its decision that the agency's rarely used legal maneuver was denied "because the arguments raised in response to the motion (by R-CALF USA) are sufficiently substantial to warrant further argument."

"We are pleased that the 9th Circuit has determined that R-CALF USA's case warrants further consideration and we look forward to being able to present the facts concerning the BSE (bovine spongiform encephalopathy) problem in Canada and how this situation relates to trade with the United States," said R-CALF USA President and Region V Director Chuck Kiker. "It is time Canada's BSE issues, its higher BSE infection level and its ineffective feed ban are addressed, and rules developed to protect Canada's trade partners, like the U.S., from importing this disease."

R-CALF USA filed litigation against USDA in January 2005, claiming the agency's Final Rule on "Minimal Risk Regions: Bovine Spongiform Encephalopathy and the Importation of Commodities," which relaxed long-standing import restrictions for countries affected by BSE, was inadequate to protect the U.S. cattle industry from the introduction of BSE from Canada.

"Utilizing a court of law was our last resort in our attempts to work with USDA to maintain the health of the U.S. cattle herd," Kiker continued. "This latest decision by the 9th Circuit means that R-CALF gets the right to appeal. If we win the appeal, then we will have the opportunity to have all our facts and scientific evidence considered by the court. This has been our objective all along."

Kiker surmised that USDA does not want the organization's case to be reviewed by the 9th Circuit because the circumstances unfolding in Canada continue to disprove the key assumptions USDA used to defend its Final Rule. Just as one example, Kiker said, USDA did not contemplate the recent discoveries of BSE-infected cattle born three to five years after the 1997 implementation of Canada's feed ban.

"These recent cases of younger Canadian cattle with BSE disprove USDA's key assumption that the Canadian feed ban has been effectively enforced," he said.

R-CALF USA CEO Bill Bullard said the 9th Circuit now must decide if this case should be reconsidered. R-CALF USA must file its opening brief by Dec. 11, and USDA's reply brief is due Jan. 10, 2007, exactly two years after R-CALF USA filed its lawsuit against the agency. R-CALF USA can then file an optional reply brief within 14 days of USDA's reply brief.

"If the 9th Circuit does grant R-CALF the opportunity to argue the merits of our case, the court would remand the case back to U.S. District Court Judge Richard F. Cebull, in whose court the original litigation was filed," Bullard commented.

Note: To view the 9th Circuit's decision, visit the "BSE-Litigation" link at Also, for background information, see the R-CALF USA news release dated Aug. 21, 2006, titled "USDA Attempts Rarely Used Legal Maneuver to Prevent R-CALF USA Appeal" under the same link.

# # #

R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is a national, non-profit organization and is dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. R-CALF USA represents thousands of U.S. cattle producers on both domestic and international trade and marketing issues. Members are located across 47 states and are primarily cow/calf operators, cattle backgrounders, and/or feedlot owners. R-CALF USA has more than 60 affiliate organizations and various main-street businesses are associate members. For more information, visit or, call 406-252-2516.

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