Court Upholds USDA’s Rule Relaxing Ban on Canadian Beef and Cattle Imports

August 28, 2007 | Roger McEowen

 

Overview

The United States Court of Appeals for the Ninth Circuit, largely on procedural and evidentiary grounds, has upheld a USDA Final Rule allowing limited imports of cattle from Canada, despite additional occurrences of Mad Cow Disease in Canadian cattle since the Final Rule was promulgated.  The court reasoned that USDA did not rest its decision to finalize the rule on “completely baseless assumptions” at the time the Final Rule was developed, and did not take into consideration additional evidence that the Final Rule was ineffective in preventing infected cattle from showing up in the U.S. cattle herd.

Historical and Procedural Background

In the mid-1990s the British government determined that the consumption of BSE-contaminated meat could cause Creutzfeldt-Jakob Disease in humans.  Shortly thereafter, FDA and USDA promulgated new regulations prohibiting the use of mammalian proteins in cattle feed, and the use of “specified risk materials” – such as cattle brains, spinal cords, and nerve tissue in human food.  A ban was then put into place on imports of all cattle products from countries where BSE was known to exist.  The USDA added Canada to this list of countries in May 2003, after a cow in Alberta was diagnosed with BSE.  While Canada had instituted a feed ban in 1997, it was likely that the cow was exposed before the ban and that the disease had incubated for a period of years.  In August of 2003, 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.  In November 2003, USDA announced a proposed rule creating a new category of “minimal risk” regions - a category that would include Canada.  Before finalization of the rule, a Canadian-born cow with BSE showed up in the state of Washington.  USDA then reopened the comment period, eventually publishing the Final Rule which modified existing regulations to allow imports of Canadian cattle under 30 months of age for purchase by feedlots or meatpacking companies.  The rule also allowed Canadian beef products from cattle of all ages to be imported. 

The Litigation Battle

After the Final Rule was in effect, two older cows in Canada were diagnosed with BSE, and the USDA attributed the disease to contaminated feed manufactured before the Canadian feed ban.  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.  Shortly thereafter, the plaintiff filed a complaint alleging that the USDA rulemaking violated the Administrative Procedure Act (APA), as well as with other federal statutes.  The Federal District Court in the District of Montana agreed, issued a preliminary injunction, finding that the plaintiff had demonstrated a likelihood of success on its claim that the rule was arbitrary and capricious, in violation of the APA.  The Ninth Circuit reversed on the basis of the wide discretion granted to USDA to promulgate regulations on the matter, and remanded the case to the trial court.  The trial court issued a one-paragraph opinion, noting it had been instructed by the Ninth Circuit to respect the USDA’s judgment and expertise.  The plaintiff appealed. During the pendency of the appeal, additional instances of Canadian-born infected cows occurred in Canada.  Accordingly, the plaintiff argued that the additional instances of infected cows bolstered their case that the USDA acted improperly in finalizing its rule, and argued that the trial court improperly determined that it was bound by the Ninth Circuit’s opinion reversing the trial’s court earlier issuance of preliminary injunction in the plaintiff’s favor.  As such, the plaintiff requested that the Ninth Circuit send the case back to the trial court for analysis of the developing record support of the motion for summary judgment. 

The Ninth Circuit, however, refused to remand the case to the trial court, and ruled against the plaintiff on the basis that the discovery of additional BSE-infected cattle in Canada and new evidence calling into question USDA’s methodology and analysis was outside the administrative record and could not be taken into account.  Thus, at the time the USDA promulgated the Final Rule, the court reasoned that the USDA’s basis for promulgating the rule was not arbitrary and capricious.  The court noted that the Congress gave the Secretary of Agriculture wide discretion in dealing with the importation of animal and plant products and did not require the USDA, via regulation, to eliminate all risk that BSE would enter the country.  As such, USDA’s approach utilized in adopting its regulation was not arbitrary and capricious, even though USDA’s predictions with respect to the possibility of BSE-infected cattle coming into the United States were erroneous.  The court did note, however, that the evidence of additional occurrences of BSE-infected cattle entering the United States from Canada, and the additional scientific data proffered by the plaintiff which cast doubt on the USDA’s analysis concerning the spread of the disease into the domestic meat supply could be entertained by the plaintiff filing a petition to reopen ruling-making under federal law.  Rancher’s Cattlemen Action Legal Fund United Stockgrowers of America v. United States Department of Agriculture, No. 06-35512, 2007 U.S. App. LEXIS 20557 (9th Cir. Aug. 28, 2007).