U.S. Cattlemen Lose Mad Cow Bid to Keep Canadian Animals Out

SAN FRANCISCO, California, August 29, 2007 (ENS) - The U.S. Department of Agriculture, USDA, was correct in deciding that Canada is a country of "minimal risk" when it comes to mad cow disease, the The Ninth Circuit Court of Appeals ruled Tuesday.

The case involves a challenge to the government's regulation of Canadian cattle imports in the wake of incidents of mad cow disease, formally known as bovine spongiform encephalopathy, BSE.

In 2004, when the USDA declared Canada to be a minimal risk, the United States was fighting its way back from a widespread ban on American beef imposed by many countries in December 2003 following the discovery of the first case of mad cow disease in the United States.

Worried that diseased Canadian cattle would contaminate American herds and bring American beef into disrepute, the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, R-CALF, representing about 18,000 cattle growers, challenged the designation of Canada as a "minimal-risk" country.

R-CALF argued 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 rulemaking procedure.

But the three-judge panel disagreed. "Having reviewed the merits of this case, we conclude that the agency considered the relevant factors and articulated a rational connection between the facts found and its decision to designate Canada a minimal-risk country. R-CALF's extra record evidence has failed to convince us that the agency's review was unauthorized, incomplete, or otherwise improper."

Headquartered in Billings, Montana, R-CALF appealed this case on the basis that the federal District Court of Montana erred by not holding a hearing and not carefully reviewing the merits of all of the cattlemen's arguments and evidence before denying the organization's motion for summary judgment.

The appeals court agreed with R-CALF that the district court should have conducted such a review. However, rather than remanding the case back to the lower court as R-CALF had requested, the Ninth Circuit panel decided the merits of the case on its own.

"In the Ninth Circuit opinion, the court acknowledges that the evidence R-CALF USA submitted, including evidence showing that BSE is more widespread in Canada than USDA assumed, is ‘certainly cause for concern' and calls into question certain USDA decisions, but concludes these facts do not demonstrate the agency failed to consider relevant factors back in 2004 when the agency wrote the Final Rule," explained Bill Bullard, R-CALF CEO.

The Food and Drug Administration and the USDA responded to an outbreak of mad cow disease in Europe in 1996 with new regulations. Imposed in 1997, these rules prohibited the use of mammalian proteins in cattle feed, and prohibited the use of "specified risk materials" such as cattle brains, spinal cords, and nerve tissue in human food.

The USDA, working with the World Organization for Animal Health, developed guidelines and proposed protective measures to prevent the spread of BSE to the United States. Chief among these measures was a ban 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 mad cow disease.

R-CALF argued that Canada should have stayed on the banned list.

"It is disappointing that the 9th Circuit panel felt its role in reviewing USDA's action was so limited that it could ignore the fact - clearly demonstrated by Canada's own BSE surveillance in the past two years - that USDA was very mistaken when the agency based its Final Rule on assumptions that Canada's 1997 feed ban would prevent BSE infection in cattle born after the feed ban," said R-CALF President Max Thornsberry, a Missouri veterinarian.

"Canada has now had almost as many BSE cases born after the ban as before, and a number of them born years after USDA assumed Canada's feed ban would eliminate further BSE exposure," Thornsberry said.

The older and larger American Meat Institute, AMI, praised the court's decision. AMI President and CEO J. Patrick Boyle called it "a victory for science and a defeat for isolationism."

"This decision will help clear the way for fully restoring cattle trade with Canada, which is good for both of our countries," said Boyle. "And it lays to rest false claims by protectionist groups, such as R-CALF, that such trade presents a food safety issue."

R-CALF says its lawsuit has not been in vain.

"As a result of our litigation," said Bullard, "the U.S. cattle industry has achieved protections it would not have otherwise obtained, including a prohibition against the importation of pregnant cows from Canada, a suspension on imports of beef from Canadian cattle older than 30 months of age, and a delay of USDA's plans to allow imports of Canadian cattle over 30 months of age into the United States."

The 30 month limit is important because BSE has a long incubation period and it is thought that cows younger than 30 months have not had time to develop the disease.

"R-CALF has made no decisions on what our next steps might be," Bullard said. "All decisions related to this matter must be approved by our board of directors, which will now consider its options, one of which might include requesting an en banc hearing before the entire panel of 9th Circuit judges."

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