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From: TSS ()
Subject: R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005
Date: September 9, 2005 at 10:32 am PST

R-CALF USA's Petition for Rehearing in the 9th Circuit Court of Appeals September 7, 2005

FryøLaw PLLC

The Virtual EHS Law Firm 1M

3050 K St., N.W.

Suite 400

Washington, DC 20007-5108

Phone: 202.572.8267

Fax: 866.850.5198

rfrve~frveLaw. com

Via Express Delivery

Ms. Cathy Catterson

Clerk of the Court

United States Court of Appeals for the Ninth Circuit

95 Seventh Street

San Francisco, CA 94103-1526

September 7, 2005

Re: Ranchers Cattlemen Action Legal Fund United Stock growers of America v.

U.S. Department of Agriculture, et al., Docket No. 05-35264

Dear Ms. Catterson:

Enclosed for filing please find the original and 50 copies of

AppelleelPlaintiff's Petition for Rehearing, with Suggestion for Rehearing En Banc,

in the above-captioned appeaL. Thank you.

ø~ Russell S. Frye

Counsel for Appellee/Plaintiff

Ranchers Cattlemen Action

Legal Fund United

Stockgrowers of America

cc: Counsel for all parties

No. 05-35264

















3050 K Street, N.W., Suite 400 Edwards, Frickle, Anner-

Washington, DC 20007-5108 Hughes, Cook & Culver

(202) 572-8267 1601 Lewis Avenue, Suite 206

P.O. Box 20039

WILLIAM L. MILLER Billings, MT 59104

The William Miller Group, PLLC (406) 256-8155

3050 K Street, N.W., Suite 400

Washington, DC 20007-5108

(202) 342-8416

Attorneys for Plaintiff-Appellee


Pursuant to Fed. R. App. P. 26.1 and Ninth Circuit Rule 26.1, Plaintiff-

Appellee Ranchers Cattlemen Action Legal Fund United Stockgrowers of

America ("R -CALF") hereby states that it is a non-profit corporation organized

under the laws of the State of Montana. R-CALF has no parent corporation, and

no publicly traded company owns 10 percent or more of the stock of R-CALF.

Dated: September 7,2005 ~t/vv Russell S. Frye

FryeLaw PLLC

3050 K Street, N.W., Suite 400

Z~0007 illiam L. Miller

The William Miller Group, PLLC

3050 K Street, NW, 4th Floor

Washington, DC 20007 .¿~~1 A. Clifforo Edwards

Taylor S. Cook

Edwards, Frickle, Anner-Hughes, Cook & Culver

1601 Lewis Avenue, Suite 206,

Billings, MT 59104

Attorneys for Plaintiff







RULE 26.1 CORPORATE DISCLOSURE STATEMENT................................... ii

TABLE OF CONTENTS...................................................................................... iii

I. Introduction. .................................................................................................1

II. The decision is inconsistent with other decisions of this Circuit requiring an

agency to justify departures from prior factual and policy determinations.....3

III. The panel erred in imposing a very narrow standard of review of USDA’s

action. ...........................................................................................................6

IV. The decision’s discussion of USDA’s failure meaningfully to assess the risk

of Canadian imports conflicts with Ober v. Whitman and ignores USDA’s

own policy statements on risk assessment. ..................................................11

V. The panel improperly substituted its factual conclusions for those of the

District Court, contrary to other decisions of this Circuit. ...........................14

VI. The panel’s conclusion on irreparable harm contained errors of fact and

law. . ...........................................................................................................17


CIRCUIT RULES 35-4 AND 40-1 .............................................................21

CERTIFICATE OF SERVICE..............................................................................22


I. Introduction.

The panel’s decision in this case, reported at 415 F.3d 1078, vacates a

preliminary injunction that was preserving long-standing U.S. import

protections against a dangerous disease, bovine spongiform encephalopathy

("BSE"), or "Mad Cow" disease, that has already cost the U.S. cattle

industry billions of dollars.

In addition, the panel’s conclusion that the Secretary of Agriculture

has a vast amount of discretion to allow imports of pest-infested or diseased

animals and animal products, and the panel’s proffered findings about the

underlying facts in the case, create a precedent that is highly prejudicial to

the public’s right to judicial review of critical decisions affecting U.S.

agriculture and consumers. Moreover, since the statutory authority at issue

here is very similar to other statutes giving the Secretary of Agriculture

responsibility for preventing imports of pests and diseases affecting plants

and unsafe food1, the decision creates a precedent that also could be applied

to limit judicial review of critical USDA actions under those other statutes.

The parties agree that billions of dollars are at stake. Moreover,

because this matter concerns an inevitably fatal disease that has proven

1 See, e.g., Plant Protection Act, 7 U.S.C. § 7711(c)(1); Meat Inspection Act,

21 U.S.C. § 620(g).


difficult to control as it spread around the world, this case has important

potential effects on human health, U.S. livestock, and export markets.

Rehearing is appropriate here because the decision is inconsistent with

several other decisions of this Circuit and because it overlooks or misstates a

number of important points of law and fact. Contrary to the admonishments

of other opinions, the panel, while reviewing a preliminary injunction,

attempted a detailed review of facts not even fully developed below nor

presented fully on appeal. Not surprisingly, the panel missed or

misunderstood key aspects of the administrative record. The panel also

considered a statutory interpretation not argued below, and in so-doing

overlooked important indications of congressional intent.

Rehearing en banc is appropriate because this case involves questions

of exceptional importance and because consideration by the full Court is

critical to maintain consistency among the Court’s decisions. The

exceptional national importance of the case is described above; it is apparent

as well from the great public interest in the case, reflected in the 11 amicus

curiae briefs, including those of six state attorneys general and a broad

coalition of national consumer groups and state and local agriculture groups

supporting Appellee Ranchers Cattlemen Action Legal Fund United

Stockgrowers of America ("R-CALF").


II. The decision is inconsistent with other decisions of this Circuit

requiring an agency to justify departures from prior factual and

policy determinations.

For many years, the U.S. Department of Agriculture ("USDA") has

had a strict policy of prohibiting imports of cattle and beef from any country

where BSE is known to exist. See 70 Fed. Reg. at 462, Excerpts of Record

("ER") at 183. The purpose of this strict prohibition was to minimize the

potential for introduction of BSE into the U.S. cattle herd and the potential

for U.S. beef consumers to be afflicted with the human version of BSE,

variant Creutzfeldt-Jakob disease (vCJD). That policy was applied to

Canada on May 29, 2003, after the discovery of BSE in a native-born

Canadian cow. 68 Fed. Reg. 31,939. Under intense pressure from the

Canadian government and some U.S.-based meat packers, USDA

subsequently authorized imports of Canadian cattle and beef, subject to

some restrictions, in the regulation under review in this case, 70 Fed. Reg.

460 (January 4, 2005) (the "Final Rule").

R-CALF pointed out that USDA repeatedly concluded that banning

imports of cattle and meat from any country where BSE is discovered was

"necessary" because BSE could become established in the United States if

cattle with BSE were imported into United States. See, e.g., 66 Fed. Reg.

52,483 (Oct. 16, 2001), affirmed 67 Fed. Reg. 8181 (Feb. 22, 2002). USDA


policy derived from the nature of BSE: "We believe that due to the drastic

consequences of BSE introduction, strict import requirements are justified

to control even very low-probability risks of introducing BSE. In addition,

due to the long incubation period of BSE and the lack of long-term

comprehensive studies of its spread in countries with only a few reported

cases, we cannot accurately estimate the extent of BSE in countries with any

reported cases." 56 Fed. Reg. 63,865, 63,867 (April 30, 1991) (emphasis

added). See also 62 Fed. Reg. 65,747, 65,748 (Dec. 16, 1997) (given the

lack of a vaccine or a test to detect the disease in live animals, banning

imports of cattle and beef is "the most effective means available for ensuring

that BSE does not enter the United States….").

As recently as 2003, an inter-agency working group convened by the

Secretary of Agriculture explained to Congress the critical importance of the

ban on imports, "the primary firewall at the borders," in U.S. efforts to avoid

BSE. PL 107-9 Final Report ("Report to Congress"), SER20. It described

importing "live cattle that are already incubating the disease and then are

slaughtered, rendered, and incorporated into domestic meat and bone meal

that is mistakenly fed to cattle" as one of two "most likely routes of

introduction of BSE into the U.S. national herd." Id. at SER26.


USDA failed to meet its special obligation adequately to explain why

it chose to abandon its prior decision to ban imports of cattle and bovine

products from all countries with BSE, once BSE was discovered in Canada.

See California v. FCC, 905 F.2d 1217, 1234 (9th Cir. 1990); Lynch v.

Dawson, 820 F.2d 1014, 1021 (9th Cir. 1987). USDA failed to explain how

the Final Rule is consistent with 7 U.S.C. § 8303(a)(1), given that it

abandons prior policies that prevent "even very low-probability risks of

introducing" BSE into the U.S., now attempting only to "minimize" the risk

of "dissemination" once the disease has entered the country.

The panel failed entirely to address the fact that USDA reversed its

judgment about measures necessary to prevent the introduction of BSE into

the United States without providing adequate justification and without

referencing new information that could justify reversing its position. The

principal device that USDA now claims will provide adequate protection to

U.S. cattle if BSE-infected cattle are imported from Canada, the prohibition

on feeding ruminant protein to other ruminants, has been in place since

1997, ER190, yet, as noted above, USDA has said repeatedly since then that

importation and rendering of BSE-infected cattle, followed by mis-feeding

to U.S. cattle, is one of the primary risks for introduction of BSE into the

United States. The "Harvard Study" on which USDA principally relies for


support in its relaxation of BSE protections for Canada, was first completed

in 2001 and relies on scientific studies reported primarily in the 1990s.

ER180-81, 190-91. Clearly, USDA is not now relying on new information

that was unavailable when USDA in recent years repeatedly reaffirmed the

importance of the ban on imports of cattle from BSE-afflicted countries.

Rehearing is justified by the panel’s failure to address and apply precedent

requiring an agency to justify its departure from its previous position.

III. The panel erred in imposing a very narrow standard of review of

USDA’s action.

In a single page of its opening brief in this appeal, USDA raised an

argument it had not raised at the District Court, claiming that the language

and legislative history of one of the statutory provisions under which the

Final Rule was issued provide no standards by which to measure the

Secretary’s exercise of discretion and render the decision to allow imports of

potentially BSE-contaminated cattle and meat virtually exempt from judicial

review. USDA Br. at 20-21. The decision adopts and expands upon this

reasoning. See 415 F.3d at 1094-95.

Numerous cases in this Circuit establish the principal that this Court

must not consider legal arguments on appeal that were not presented to the

District Court. See, e.g., Brown v. City of Tucson, 336 F.3d 1181, 1187 n.11


(9th Cir. 2003); Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004)

(refusing to consider legal arguments "which should be addressed by the

district court in the first instance"); United States v. Alisal Water Corp., 370

F.3d 915, 923 (9th Cir. 2004). The panel’s failure to follow that precedent

warrants rehearing.

Moreover, without the benefit of the briefing that would have

occurred below had USDA presented this argument in the preliminary

injunction proceeding, the panel understandably misapprehended some

aspects of the legislative history. The panel focused on a discussion of the

definition of "disease" in the Conference Report for the Animal Health

Protection Act, 7 U.S.C. §§ 8301 et seq. (the only reference to the legislative

history in USDA’s brief), but overlooked other language in the Conference

Report, emphasizing the very high priority Congress placed on preventing

diseases like BSE2: "Ensuring proper screening and testing, and, where

necessary, the eradication of animal diseases, is of paramount importance to

American Agriculture, USDA, the Congress, and the American people.

With the stakes to animal health and the farm economy so high, the U.S.

government should use the very best methods available to detect animal

2 The quoted language relates to testing for scrapie, a disease related to BSE.

See 70 Fed. Reg. at 461, ER185.


diseases." H.R. Conf. Rep. 107-424, reprinted in 2002 U.S.C.C.A.N. 141,


The panel also may not have been aware that the Animal Health

Protection Act, although only enacted in 2002, replaced almost identical

language in a 1962 statute (P.L. 87-518, 76 Stat. 129, sec. 4). Cf. 415 F.3d

at 1094. Far from "indicat[ing] a congressional intent to give the Secretary

wide discretion in dealing with the importation of plant and animal

products" (id.), the legislative history of that 1962 predecessor statute

evidences congressional intent to "provide greater protection against the

introduction and dissemination of diseases of livestock" and to "charge the

Secretary of Agriculture with the general duty and responsibility of

preventing the entry or dissemination of communicable diseases of

livestock…." H.R. Rep. 1516, reprinted in 1962 U.S.C.C.A.N. 1822

(emphasis added); see also id. at 1823, 1825, 1827.3

3 Even the passage from the legislative history that the panel did focus on,

explaining that the Conference Committee wanted to give the Secretary

discretion to define "disease," indicates that the reason for doing so was so

that USDA could be more effective in focusing on real threats of disease,

rather than indicating an intent to give the Secretary discretion to decide to

allow imports of diseased animals that present a risk to U.S. livestock. See

2002 U.S.C.C.A.N. at 389; see also 7 U.S.C. § 8302(1) Moreover, the panel

apparently missed the fact that the AHPA defines the prions believed to

cause BSE as a "pest" rather than a "disease." Id. at § 8302(13)(I).


The panel also did not refer to another statute that bears directly on

congressional intent that USDA take steps to reduce, not increase, the risk of

BSE, and fully characterize for the public the risk of BSE and vCJD from

USDA actions. In the Animal Disease Risk Assessment, Prevention, and

Control Act of 2001, PL 107-9, Congress found that the potential

introduction of BSE into the United States would cause "devastating

financial losses to – the agriculture industry and other economic sectors; and

United States trade in the affected animals and animal products." PL 107-9

§ 2(a)(3). One of the express goals of PL 107-9 was "to make certain that

the Congress and the American public are fully informed as to the reliability

of our nation’s animal health inspection system, its ability to protect our

domestic herds and the American public from the potential introduction into

the United States of" BSE. 147 Cong. Rec. S3709 (April 6, 2001).

Congress directed the Secretary to provide "recommendations to reduce and

manage the risks of . . . bovine spongiform encephalopathy, and related

diseases." Id. at § 3(b)(2)(B) (emphasis added). These clear statements of

congressional policy are contravened by the panel’s conclusion in this case

that USDA need not minimize the risk of BSE from imports nor tell the

public how much risk is associated with imports allowed by the Final Rule.

Cf. 415 F.3d at 1094.


The standard of review for actions under the AHPA set out in footnote

15 of the decision, that the action should not be overturned "[a]bsent a

strong showing that the Secretary is not exercising [his ‘considerable’]

discretion consistent with the statutory requirements," is inconsistent with

other decisions of this Circuit interpreting judicial review under the

Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Under those

decisions, an agency action is arbitrary and capricious or an abuse of

discretion under the APA if, for example, it frustrates a congressional policy

underlying the statute, and not only when it is inconsistent with a specific

statutory directive. See, e.g., Ariz. Cattle Growers’ Ass’n v. United States

Fish & Wildlife Service, 273 F.3d 1229, 1236 (9th Cir. 2001). An agency

also acts in a way prohibited by the APA if it acts without considering the

appropriate factors or after considering inappropriate ones, id., lacks data to

support its assumptions, Ober v. Whitman, 243 F.3d 1190, 1195 (9th Cir.

2001), fails adequately to explain its assumptions and conclusions,

California v. FCC, 905 F.2d at 1244, or fails to justify its departure from

prior policy decisions, see p. 5, supra.

The standard of review adopted in the decision appears not to allow

for all these other ways in which an action can be found to violate the APA,

focusing solely on the "not in accordance with law" portion of 5 U.S.C. §


706(2). This is not merely semantics. The decision dismissed or ignored

numerous findings by the District Court that USDA failed to provide a

reasoned explanation for part of the basis for its conclusions or had provided

an explanation that was internally inconsistent or not supported by the

record. The decision criticizes the District Court for using a "divide and

conquer" approach, analyzing USDA’s support for its assertions about each

of the factors it claims will virtually eliminate BSE risk from Canadian

imports, implying that if USDA relies on a number of mitigation measures,

it does not matter if some of those measures were not adequately explained

or supported in rulemaking. See 415 F.3d at 1095. There is no basis for

such an approach in the APA, and in fact it does not even have a factual

basis: some of the mitigation measures address risks to U.S. cattle from live

cattle imports, while others address risks to humans. USDA was obligated

to justify its assumptions about the effectiveness of each of its BSE

mitigation measures.

IV. The decision conflicts with Ober v. Whitman and ignores USDA’s

own policy statements on risk assessment.

The decision rejected the District Court’s conclusions that USDA had

failed adequately to assess the risk to animal and human health presented by

the Final Rule. See 415 F.3d at 1096-97. The District Court, aided by the


declaration of an expert in risk assessment, found that USDA’s failure to

attempt to quantify the risk presented by resuming Canadian imports, and

indeed its statement that it had not even determined what level of cattle and

human deaths would be acceptable as a result of the Final Rule, made it

impossible for the public and the reviewing court meaningfully to assess

USDA’s policy choices in the Final Rule and its assurances that the risk was

acceptable and "very low." 359 F. Supp.2d at 1065, 1074. The panel

declared that "the AHPA does not require the Secretary to quantify a

permissible level of risk or to conduct a risk assessment." 415 F.3d at 1097.

But, as this Circuit concluded in Ober v. Whitman, 243 F.3d 1190, 1195, an

agency cannot conclude that something presents minimal risk without

describing the standard by which it judges the risk to be minimal.

In Ober, the Environmental Protection Agency had decided to exclude

certain sources of air pollution from a pollution control regulation because

they were "de minimis." This Circuit held that "unless" EPA has "provided

a full explanation of" the levels it considers de minimis, "supported by a

plausible explanation, we have no basis for exercising our responsibility to

determine whether" EPA’s judgment that certain pollution sources are de

minimis complies with the APA. Id. The panel’s willingness in the instant

case to accept USDA’s assurances that the risks associated with the Final


Rule are acceptable, where USDA provided no standard for judging the

acceptability of such risks, and where its own experts said it did not yet have

enough information to predict the likelihood of introduction of BSE as a

result of resuming imports, SER317-18, is inconsistent with this Circuit’s

insistence that an agency set forth the criteria it applied in judging the

acceptability of the risks of its action.

Additionally, the panel apparently overlooked the fact that preexisting

USDA policies confirm the need for quantitative risk assessments for actions

such as the Final Rule. USDA’s own procedures for evaluating whether to

allow imports from a region that potentially carry a pest or disease,

AR009519-29, state that, while a qualitative risk analysis is generally

adequate for regions considered free of certain diseases, regions in which the

disease is known to exist due to recent outbreaks are deemed to pose a

higher level of risk and have historically been approached quantitatively.

AR009525. This is because "[q]uantitative modeling allows assessment of

specific risk concerns, testing of assumptions, analysis of attendant

uncertainty, and evaluation of the effectiveness of proposed mitigation

measures." Id.; accord, SER186-190, 194; SER32. The decision also

contains no recognition that, as noted at p. 9, supra, PL 107-9 demonstrates

congressional intent that the public be fully informed of the risks of BSE and


the effectiveness of BSE mitigation measures. In light of these USDA and

congressional pronouncements, the District Court’s conclusion that USDA

should have provided more than its assurance that the risk of the Final Rule

is very low certainly was not an abuse of discretion.

V. The panel improperly substituted its factual conclusions for those

of the District Court, contrary to other decisions of this Circuit.

This Circuit has stated repeatedly that, when reviewing the issuance of

a preliminary injunction, the district court’s assessment of the likelihood of

success on the merits must be reviewed for abuse of discretion, without

getting into "the underlying merits of the case." Harris v. Bd. of

Supervisors, Los Angeles Cty., 366 F.3d 754, 760 (9th Cir. 2004) (quotations

and citations omitted). The Court "will not second-guess whether the court

correctly applied the law to the facts of the case, which may be largely

undeveloped at the early stages of litigation." Earth Island Inst. v. U.S.

Forest Service, 351 F.3d 1291, 1298 (9th Cir. 2003) (quotations omitted);

see also, e.g., Stuhlbarg Int’l Sales Co. v. John D. Brush and Co., 240 F.3d

832, 839 (9th Cir. 2001).

In the instant case, however, that is precisely what the panel did. It

delved deeply into the merits of the case, substituting its judgment for the

District Court’s on a variety of issues and concluding that "the risks inherent


in the Final Rule are small" and that it "likely is supported by an adequate

administrative record." 415 F.3d at 1100. The decision’s failure to follow

extensive precedent in this Circuit about the appropriate scope of appellate

review of a preliminary injunction warrants rehearing.4

Not surprisingly, when the panel attempted to apply the law to the

facts in the context of a preliminary injunction appeal, it missed or misstated

numerous key facts.5 The panel did not even address directly a critical

factual finding by the District Court, that USDA management entered the

rulemaking with a preconceived notion that it was important to reopen trade

with Canada as soon as possible, before having evaluated the risks and

impacts of doing so, and thereafter attempted to develop a justification for

4 The decision claims that the District Court erroneously concluded that the

AHPA requires USDA to eliminate all risk of BSE from imports, and this

illegal error infected the District Court’s review of the facts. 415 F.3d at

1094-95. This is a "straw man" argument, though-- the decision recognizes

that the District Court never said that USDA was required to assure that

Canadian imports present no additional risk of BSE. Id. at n.14; see also

Transcript of preliminary injunction hearing at, e.g., SER289-91 Rather,

the District Court appropriately evaluated the likelihood that R-CALF could

show USDA’s conclusions that the BSE risk was "virtually eliminated" by

various mitigation measures in the Final Rule were not adequately

supported. This is not "imposing...a ‘zero-risk’ requirement" (id.), it is

applying the APA requirement that USDA have a factual basis for its

assertions that there is little or no risk from the circumstances allowed under

the Final Rule. See, e.g., 359 F. Supp.2d at 1068.

5 The panel even did its own analysis of Switzerland’s BSE experience not

presented in the briefs or, apparently, the record. See 415 F.2d at 1097.


this policy decision. R-CALF provided numerous examples of statements

by USDA management about the need to move quickly to resume trade in

cattle and beef with Canada in advance of an assessment of the risks of

doing so (or before the facts of additional cases of BSE discovered in

Canada had been determined), as well as a report of USDA’s Inspector

General that supported the same conclusion (SER220-25). Thus, there was

clear support for the District Court’s factual conclusion that:

The facts strongly suggest that the USDA, ignoring its statutory

mandate to protect the health and welfare of the people of the United

States, established its goal of re-opening the border to the importation

of live beef from Canada and thereafter attempted to work backwards

to support and justify this goal.

359 F. Supp.2d at 1066; see also id. at 1074 (USDA "evidenced a

preconceived intention, based upon inappropriate considerations, to rush to

reopen the border….").

The decision on appeal does not contradict the District Court’s factual

conclusions about USDA’s preconceived intention to resume trade with

Canada, much less show that those conclusions were clearly erroneous. Cf.

Actors Equity Ass’n v. Am. Dinner Theater Inst., 802 F.2d 1038, 1042 (8th

Cir. 1986). Those factual conclusions justify not applying the presumption

of deference to USDA decisions concerning imports from Canada. See, e.g.,

Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059


(9th Cir. 2004) (improprieties in process overcame presumption that

administrative record was complete); Entergy Ark., Inc. v. Nebraska, 210

F.3d 887 (8th Cir. 2000) (where state reached political conclusion before

facts were available, no deference given to its factual conclusions); Motor

Vehicle Mfrs. Ass’n v. State Farm Mutual, 463 U.S. 29, 52-56 (1983) (no

deference when agency emphasized cost of automatic seatbelts in contrast to

congressional intent that passenger safety be primary concern). The

decision’s failure to abide by the uncontroverted factual findings of the

District Court warrants rehearing.

VI. The panel’s conclusion on irreparable harm contained errors of

fact and law.

The decision states "we disagree with the district court’s assessment

of the irreparable harm threatened by the Final Rule" and says the District

Court’s concern about the threatened harm "appears to be overstated." 415

F.3d at 1093, 1105. But a district court’s findings in preliminary injunction

proceedings may only be overturned if the reviewing court finds an abuse of

discretion, not just because the panel "disagrees with" the District Court’s

assessment of the harms. This is the kind of second-guessing of the district

court’s findings that this Circuit has rejected many times. See, e.g., Rucker

v. Davis, 237 F.3d 1113, 1118 (2001) (en banc).


The panel also missed important aspects of the substantial irreparable

harm that the preliminary injunction addressed. Cf. 415 F.3d at 1104-1105.

It ignored the fact that USDA estimated that the Final Rule would cost U.S.

cattle producers, mostly small businesses, close to $3 billion dollars. 70

Fed. Reg. at 539, 543, ER263, 267.

The panel apparently also missed the fact that the "stigma" damages

to which the District Court referred were not just damages to "American

demand for beef." 415 F.3d at 1105. The District Court was aware that fears

about the safety of beef from the U.S. after the discovery of a single BSEinfected

cow (born in Canada) in the United States caused most countries to

ban imports of U.S. beef, costing the cattle industry billions of dollars (359

F. Supp.2d at 1061, 1073) and that the earlier discovery of BSE in Canada

led Japan to demand that all beef from the U.S. be raised and slaughtered in

the U.S. ER248. The District Court thus rationally concluded that

importing cattle from Canada (which identified four cases of BSE in less

than two years) presented a risk of significant irreparable harm to U.S.

exports of beef.

Thus, not only did the panel not make the requisite finding that the

District Court's assessment of irreparable harm from cost to U.S. producers

and impact on foreign demand was clearly erroneous, it could not have. 6

Dated: September 7, 2005

Respectfully submitted,

~~ Russell S. Frye

FryeLaw PLLC

3050 K Street, N. W., Suite 400

Washington, DC 20007 ~8267

William L. Miller

The William Miller Group, PLLC

3050 K Street, NW

Fourth Floor

Washington, DC 20007

(202) 342-8416 tl~~¥- A. Cliffor dwards /

Taylor S. Cook

Edwards, Frickle, Anner-Hughes, Cook &


1601 Lewis Avenue, Suite 206,

6 In contrast, the alleged harm from the preliminary injunction actually arises

from circumstances that predate the Preliminary Injunction by almost two

years, see Stuhlbarg, 240 F~3d at 841, and involves less than 1 % of the U.S.

cattle herd, cf ER91 with SER160.



P.O. Box 20039

Billings, MT 59104

(406) 256-8155

Attorneys for Plaintiff




Form 11. Certificate of Compliance Pursuant to

Circuit Rules 35-4 and 40-1

Form Must be Signed by Attorney or Unrepresented Litigant

and Attached to the Back of Each Copy of the Petition or Answer

(signature block below)

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for

panel rehearing/petition for rehearing en banc/answer is: (check applicable


_X_Proportionately spaced, has a typeface of 14 points or more and

contains 4199 words (petitions and answers must not exceed 4,200 words).


- Monospaced, has 10.5 or fewer characters per inch and contains

words or lines of text (petitions and answers must not

exceed 4,200 words or 390 lines of text).


- In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.

(New Form 7/1/2000)




I hereby certify that, on the 7th day of September 2005, I have caused a copy

of the foregoing Petition for Rehearing, with Suggestion for Rehearing En Banc, to

be served by placing it in the U.S. mail or consigning it to an express delivery

service, addressed to:

Mark B. Stern

Civil Division

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Room 7256

Washington, DC 20530

Attorney for Defendants/Appellees

Christian D. Tweeten

Chief Civil Council

Department of Justice

P.O. Box 201401

Helena, MT 59620

Attorney for amici curiae States of Montana, Connecticut, Nevada,

New Mexico, North Dakota, and South Dakota

David A. Domina

Domina Law, pc llo

2425 S 144th St

Omaha, NE 68144

Attorney for amici curiae 67 National, State, and Local Consumer

Research Groups, Public Interest Organizations, Farm and Ranch

Organizations, and Local Private Organizations

Maureen E. Mahoney

Latham & Watkins, LLP


555 Eleventh Street, NW

Suite 1000

Washington, DC 20004-1304

Attorney for amicus curiae Government of Canada

Gregory G. Garre

Hogan & Hartson, LLP

555 Thirteenth Street, NW

Washington, DC 20004

Attorney for amici curiae National Cattlemen’s Beef

Association, American Farm Bureau Federation,

National Pork Producers Council, 29 State Cattlemen’s

Associations, 18 State Farm Bureaus, and 9 Individual

Cattle Producers

Sarah Weinstein

Mayer, Brown, Rowe & Maw, LLP

Two Palo Alto Square

Suite 300,

3000 El Camino Real

Palo Alto, CA 94306-2112

Attorney for amicus curiae Alberta Beef Producers

Michael B. Gillett

McElroy Law Firm, PLLC

Two Union Square

601 Union Street, Suite 1606

Seattle, WA 98101

Attorney for amicus curiae Easterday Ranches, Inc.

Joseph O. Click

Blank Rome, LLP

Watergate, Eleventh Floor

600 New Hampshire Avenue, NW

Washington, DC 20037

Attorney for amici curiae Canadian Cattlemen's Association

and Its Affiliated Organizations

Jonathan L. Abram

Hogan & Hartson, LLP

555 Thirteenth Street, NW

Washington, DC 20004

Attorney for amici curiae American Meat Association,

North American Meat Processors, Southwestern Meat Association,

Eastern Meat Packers Association, American Association of

Meat Processors, National Restaurant Association, and United Food and

Commercial Workers

John O'Brien

Kerr, Brosseau, Bartlett, O'Brien, LLC

Suite 1600

1600 Broadway

Denver, CO 80202

Attorney for amicus curiae Pioneer, Inc.

Gregg Spyridon

Spyridon, Koch, Palermo & Dornan, LLC

Suite 3010

Three Lakeway Center

3838 N. Causeway Blvd.

Metairie, LA 70002

Attorney for amici curiae the Came lid Alliance, et al.

Alan Charles Raul

Sidley Austin Brown & Wood, LLP

1501 K Street, N.W.

Washington, DC 20005

Attorney for amicus curiae Tyson Foods, Inc. ~ . ~~

Russell S. Frye



Subject: Importation of Whole Cuts of Boneless Beef from Japan [Docket No. 05-004-1] RIN0579-AB93 TSS SUBMISSION Date: August 24, 2005 at 2:47 pm PST


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