Judge's ruling keeps border closed to Canadian cattle

U.S. District Court Judge Richard Cebull issued a strongly worded opinion on March 2 as he rebuffed efforts by the U.S. Department of Agriculture (USDA) to re-open the Canadian-American border to cattle from both sides.

"The USDA cannot favor trade with Canada over human and animal health within the U.S. It is contrary to the direction of the Animal Health Protection Act to protect the health and welfare of the people of the United States," Cebull wrote in his opinion.

The ruling upholds the injunction the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) filed intending to bar the USDA from implementing their rule on March 7. USDA is now open to a lawsuit from R-CALF seeking to overturn the rule, which is to be heard by the same judge later this year.

Reaction ranged from satisfaction to indifference from different sides this week. Governor Schweitzer issued a statement congratulating R-CALF for their victory and calling the proposed USDA rule "catastrophic to producers and consumers" because of the unknown danger of exposure to mad-cow disease precursors that led to four cases in Canadian cattle the past two years.

USDA Secretary Mike Johanns was understandably less enthusiastic about the decision, but still confident.

"Today's ruling is not a reflection on the substance of the minimal-risk rule, but rather a procedural delay while the judge considers the merits of the case," said Johanns in a statement.

More mixed was the response from the Montana Stockgrowers Association. Board member Terry Murphy from St. Ignatius said his organization supports the ruling, but for different reasons.

"We support what R-CALF is doing, but our argument has always been the economic impact," said Murphy. "The science is pretty clear — our meat supply is safe, and so is Canada's. But we have a lot of conditions we want met before the U.S. re-opens the border."

The Montana Stockgrowers main concern is that the U.S. has lost millions in trade from countries like Japan and Korea who closed their markets in December 2003 after a Canadian cow found in Washington had mad-cow disease. Murphy wants the U.S. to pressure these governments to open their markets by threatening to close our markets to some of their exports, a tactic which has seen declining success in recent years. But Murphy seemed confident a breakthrough could happen this year, with several Senators bringing the subject up in trade negotiations.

"R-CALF tends to be on the protectionist side," said Murphy. "We want trade, but we want it on an equal playing field. The Vancouver Sun did an investigative report that started all this mess that is irresponsible journalism. In their zeal for a story, they used unproven science and their work was picked up by a lot of larger media outlets."

Murphy said the Sun toured several packing facilities and feed plants, claiming their research showed there was 59 percent mammalian protein present in the feed. But they did their research with microscopes, which are unproven in this field as a basis for standards, said Murphy, so he equated their work with tabloid journalism.

R-CALF's challenge and the judge's opinion focused exclusively on the health risks of opening the border, rather than the economic impacts.

One point R-CALF presented and the judge agreed with was the notion that opening the border to unsafe cattle would create a unsafe stigma with all beef, Canadian or American. The American Meat Institute (AMI), a trade group for meat packers in the U.S., smirks at this assertion.

"The only stigma being created is by R-CALF," said Janet Riley, senior vice president for public affairs for AMI. "They created this whole scare about the health of Canadian cattle."

"An irony in this case is that R-CALF considers only its own short-term economic gains," said Mark Dopp, senior vice president of regulatory affairs for AMI. "Long-term, R-CALF's strategy will backfire as Canada expands its slaughter capacity, grows its own beef production and processing capacity and becomes a competitor to the U.S. rather than a partner in what was a highly successful, integrated North American beef industry. If this unfortunate scenario becomes a reality, R-CALF has only itself to blame."

In addition to their argument that the Canadian cattle supply is safe (called minimal risk by USDA), Riley stressed that mad-cow has still never been found in the North American food supply, and there would have to be triple the cases of mad-cow in order for Canada to cross the minimal risk threshold.

"The Office of Environmental Epizootics, which is the gold standard for animal health, has said the higher the risk, the more you increase requirements for checking on animal health," said Riley. "If you meet these requirements, you should be able to trade, and Canada has met the requirement for the smallest classification of risk."

Another argument in R-CALF's injunction is that labeling the country of origin on all cattle will alleviate the public's fears, but Riley insists numerous surveys have borne out price, quality, and convenience as the only three factors about which consumers care.

While keeping the price of American cattle at a high level — more than three times the price of Canadian cattle according to Murphy — is very important to ranchers and stockgrowers, it is a bane to consumers. Canada currently has more cattle than it can process, and the introduction of their cattle into the U.S. would drive the price of live cattle down and lead to cheaper meat prices.

The future is not bright for the USDA and their supporters. Health risks and the science of the testing will again be a big factor in R-CALF's lawsuit, and Cebull sided with every one of the plaintiff's arguments in his opinion. His wording is not muddled.

"The discovery of four animals raised in Alberta province stricken with BSE … is inconsistent with the USDA's assertion that the BSE incidence rate in Canada is 'very low' or 'minimal,'" wrote Cebull in his opinion. "The testing indicates that if Canada were to ship 1.7 million head of cattle a year to the U.S., as it did in 2002 prior to the discovery of BSE in Canada, it is a virtual certainty that Canadian cattle infected with BSE would be imported into the U.S.

"It appears that regardless of what the testing shows, APHIS (Animal and Plant Health Inspection Service) will not abandon its assumption that the incidence of BSE in the Canadian herd is minimal."