Summary of a Recent
Judicial
Development in
Biosecurity
Secretary Has Wide Discretion to Open
Borders Under the AHPA
Craig RaysorNational AgLaw Center Research Associate
In Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States Dep't of Agric., 415 F.3d 1078 (9th Cir. 2005) the Ninth Circuit Court of Appeals reversed the decision of the District Court, holding that a preliminary injunction banning the importation of beef from Canada due to the threat of mad cow disease (BSE) was improper because the likelihood of success on the merits was erroneously evaluated due to a misreading of the Animal Health Protection Act (AHPA).
The District Court of Montana determined that the final rule regarding resumption of importation of Canadian beef was arbitrary and capricious under the Administrative Procedure Act (APA) and issued a preliminary injunction prohibiting its enforcement. See id. at 1085. The court held that the AHPA required that any actions by the Secretary are to present no additional risk to human or animal health, and the USDA did not follow this directive and was entitled to no deference regarding the final rule. See id. at 1094. After this determination, the court then implemented its own judgment and found that the agency acted in an arbitrary and capricious manner on by resuming the importation of Canadian beef. See id.
The Circuit Court stated that the preliminary injunction was improper because the District Court's finding of a strong likelihood of success on the merits was based on legal error. See id. at 1093. The District Court erred by not deferring to agency judgment, which was attributable to a misreading of the AHPA to find that the USDA's final rule must present no additional risk to human or animal health. See id. at 1094. The Ninth Circuit held that the agency was given wide discretion under the AHPA to deal with the importation and plant products, and that open borders are a default under the Act and the Secretary may only close the borders if it is deemed necessary to prevent disease. See id. at 1094-95. The court additionally held that the Secretary's reliance on a Canadian feed ban, the low incidence of infected cattle, and other import restrictions provided a firm basis that importation would not significantly increase the risk of BSE to the American population pursuant to the AHPA. See id. at 1095. The court deferred to the agency's discretion, measured by the arbitrary and capricious standard for reasoned decisionmaking, and found that the agency's action should be upheld. See id. at 1096-1100.
The case was decided on July 25, 2005.