U.S. judge rejects permanent injunction

[crossfield_beef]

I just now noticed this on the CBC website. The higher CDN dollar in relation to US may have more impact on us then these border issues are going to have.

U.S. judge rejects permanent injunction to block Canadian beef
Last Updated Thu, 06 Apr 2006 00:48:52 EDT
CBC News
A Montana court has rejected a U.S. beef lobby group's request for a permanent injunction to block the importation of Canadian cattle, the Canadian Cattlemen's Association says.


INDEPTH: Mad Cow Disease

R-CALF had asked U.S. District Judge Richard Cebull to scrap a ruling by U.S. Department of Agriculture that reopened the border to live cattle under 30 months old and boxed cuts of Canadian beef.

While the higher CDN dollar has had a negative effect on our export prices I have not noticed a lowering of input costs on US products that I buy. I am told that our fuel prices would be a lot higher if not for the strong CDN dollar. Hard to believe with the prices we are paying.
Vehicles of all kinds are almost out of reach price wise.
Maybe the prices of repairs and parts will drop somewhat.
Anyway, things look good with lots of moisture. I wonder how the grasshoppers are going to survive and thrive in eastern Alberta this year?
I hope things are better for you folks in the eastern part of the province.
Life is good, My wife is working in this positive economy and has a good paying job.
Cheers!! from a dad, farmer and home maker.

[cowman]

So did you feed any cattle this winter Crossfield beef? How did that work out for you ...if you did?

[farmers_son]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

RANCHERS CATTLEMEN ACTION )

LEGAL FUND UNITED )

STOCKGROWERS OF AMERICA, ) CV-05-06-BLG-RFC

)

Plaintiff, ))

vs. ))

ORDER

UNITED STATES DEPARTMENT OF )

AGRICULTURE, ANIMAL AND )

PLANT HEALTH INSPECTION )

SERVICE, and MIKE JOHANNS, )

IN HIS CAPACITY AS THE )

SECRETARY OF AGRICULTURE, ))

Defendants. )

____________________________________)

BACKGROUND

On January 4, 2005, USDA published its Final Rule, which, among other provisions,

allowed the importation of Canadian cattle under 30 months of age provided the cattle were

immediately slaughtered or fed and then slaughtered. Final Rule, 70 Fed.Reg. at 460, 469. The

Final Rule also permitted the importation of beef products from Canadian cattle of all ages. Id.at

461, 465. The Final Rule was scheduled to go into effect on March 7, 2005. Id. at 460. Shortly

Case 1:05-cv-00006-RFC Document 182 Filed 04/05/2006 Page 1 of 5

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thereafter, two additional cases of BSE were confirmed in Alberta. The USDA indefinitely

suspended the implementation of the portion of its Final Rule that permitted the importation of

beef from cattle over 30 months. 70 Fed.Reg. 12,112 (Mar. 11, 2005).

Six days after USDA published the Final Rule, R-CALF filed this action, seeking to

enjoin the rule's implementation. In its complaint, R-CALF alleged that USDA's rulemaking

violated the Administrative Procedure Act (“APA”), the Regulatory Flexibility Act (“RFA”), and

the National Environmental Policy Act (“NEPA”). On February 1, 2005, three weeks after filing

its complaint, R-CALF filed its application for a preliminary injunction to enjoin the Final Rule

pendente lite.

On March 2, 2005, this Court issued a preliminary injunction, barring USDA from

implementing its Final Rule. See R CALF I, 359 F.Supp.2d at 1074. The primary reason for

enjoining the Final Rule was a finding that the rule was arbitrary and capricious in violation of

the APA. Id. at 1063-69; see also 5 U.S.C. § 706(2). On July 25, 2005, the Ninth Circuit Court

of Appeals reversed the granting of the preliminary injuction. See Rancher’s Cattlemen Action

Legal Fund v. United States Dept. of Agriculture, 415 F.3d 1078.

Currently pending are the parties’ cross motions for summary judgment.

ANALYSIS

Summary judgment is appropriate when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Summers v. Teichert

& Son, Inc., 127 F.3d 1150 (9th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986)). Even if the evidence is merely colorable or is not significantly probative, a grant of

Case 1:05-cv-00006-RFC Document 182 Filed 04/05/2006 Page 2 of 5

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summary judgment is still appropriate. Eisenberg v. Insurance Co. of North America, 815 F.2d

1285, 1288 (9th Cir. 1987). The party moving for summary judgment bears the initial burden of

proof to identify the absence of a genuine issue of material fact.

The APA provides that a court, when reviewing agency action, shall “hold unlawful and

set aside agency action, findings, and conclusions found to be . . .arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. An agency's action

violates this standard if the agency has 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. City of Sausalito

v. O'Neill, 386 F.3d 1186, 1206 (9th Cir.2004) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

Regulations are presumed to be valid, and therefore review is deferential to the agency.

Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003). All that is required is

that the agency have “considered the relevant factors and articulated a rational connection

between the facts found and the choices made.” Id. Further, “[t]he court is not empowered to

substitute its judgment for that of the agency.” Ariz. Cattle Growers' Ass'n v. United States Fish

& Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001). Deference to the informed discretion of the

responsible federal agencies is especially appropriate, where, as here, the agency's decision

involves a high level of technical expertise. Id.

While review is deferential, it is not toothless; courts must conduct a “thorough, probing,

in-depth” inquiry into the validity of regulations. Nat'l Ass'n of Home Builders, 340 F.3d at 841.

Case 1:05-cv-00006-RFC Document 182 Filed 04/05/2006 Page 3 of 5

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This inquiry must be “searching and careful” to ensure that the agency decision does not contain

a clear error of judgment. City of Sausalito, 386 F.3d at 1206; Nat'l Ass'n of Home Builders, 340

F.3d at 841. In performing this inquiry, the court is not allowed to uphold a regulation on

grounds other than those relied on by the agency. Ariz. Cattle Growers' Ass'n, 273 F.3d at 1236

(“The reviewing court may not substitute reasons for agency action that are not in the record.”).

The Ninth Circuit has reviewed the Final Rule and has concluded that “the Secretary [of

Agriculture] 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.” Rancher’s

Cattlemen Action Legal Fund v. United States Dept. of Agriculture, , 415 F.3d 1078, 1095 (9th Cir.

2005). 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.” Therefore, Plaintiff’s Motion for Summary Judgment [doc. # 102] is DENIED and

Defendants’ Motion for Summary Judgment [doc. # 117] is GRANTED. All other pending

motions are DENIED AS MOOT.

The Clerk is directed to enter Judgment accordingly, and to notify counsel of the making

of this Order.

DATED this 5th day of April, 2006.

___/s/ Richard F. Cebull______________

RICHARD F. CEBULL

U.S. DISTRICT COURT JUDGE