Beef checkoff battle heats up in fed court
September 15, 2016
Billings, Mont. – A flurry of motions were filed recently in the lawsuit filed by R-CALF USA against the national beef checkoff program (Beef Checkoff). The group's lawsuit was filed May 2 in the U.S. District Court for the District of Montana.
The initial complaint alleges the government, represented by Agriculture Secretary Tom Vilsack and the U.S. Department of Agriculture (USDA), is operating the Beef Checkoff in violation of the U.S. Constitution by compelling cattle producers to subsidize the private speech of private state beef councils, notably the Montana Beef Council. Members of R-CALF USA, the complaint alleges, object to the Montana Beef Council's speech because it advocates that all beef is the same regardless of where or how it was produced.
In July the government requested an extension of time for which to answer the complaint and R-CALF USA did not object. But, rather than provide a typical answer, the government filed a motion in early August to dismiss or stay the group's lawsuit. R-CALF USA fired back with its own cross-motion in late August asking the court to award summary judgement and immediately end the checkoff program's unconstitutional taxation of ranchers. The group claims it is entitled to summary judgement because the government, in its motion to dismiss or stay, essentially acknowledged that the Beef Checkoff is improperly authorizing federal taxes to be used to fund private speech.
The government's reply to R-CALF USA's opposition to the motion to dismiss or stay was due September 7 and its opposition to R-CALF USA's cross-motion for summary judgment would have been due September 14. But the government again requested a delay until nearly the end of September and the court granted its request.
On September 12, the same day the court granted the deadline extension for the government, R-CALF USA filed a new motion , this one for a temporary restraining order (TRO), which is an emergency action to prevent the infliction of irreparable injury. In this case, the group seeks a TRO to stop the government from continuing to use tax monies paid by cattle producers to fund the private speech of the Montana Beef Council until the court can act on the group's cross-motion for summary judgment or a preliminary injunction. In its pleadings, R-CALF USA argued that precedent well establishes that a violation of the First Amendment is an irreparable injury and that the operation of the Beef Checkoff in Montana violates the First Amendment. Because the fall cattle run – the time of year when many Montana cattle are sent to market – is now beginning, the group argues the TRO is necessary to prevent compounding violations of cattle producers' constitutional freedoms while the government delays.
The government immediately cried foul and on the next day, September 13, called R-CALF USA's motion for a TRO an "extraordinary request" in its atypical motion seeking to delay resolution of the TRO.
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Before the ink could dry on the government's latest motion, R-CALF USA, yesterday, filed its response to the government's motion , accusing the government of repeatedly engaging in procedural tactics to avoid addressing the merits of the case. This, according to the motion, is inflicting additional First Amendment harms on cattle producers as is established "by black letter Supreme Court law."
David Muraskin with Public Justice, Dudley Butler with Butler Farm & Ranch Law Group, and Bill Rossbach of Rossbach Law, P.C. in Missoula, Montana, are co-representing R-CALF USA in the lawsuit.