In early 2016, R-CALF USA, through its attorneys Public Justice, filed a First Amendment challenge to USDA’s practice of unconstitutionally taxing Montana cattle producers to pay for the Montana Beef Council’s private speech without first obtaining the affirmative consent of the cattle producers subject to the mandatory beef checkoff tax.
In late 2016 a U.S. magistrate judge issued Findings and Recommendations indicating R-CALF USA was likely to succeed on the merits of its challenge. Only after that indication did USDA attempt to take steps to attempt to transform the private speech of the Montana Beef Council into government speech by entering into a Memorandum of Understanding (MOU) with the Montana Beef Council. The MOU purported to grant the USDA pre-approval of all the council’s speech, which USDA contended rendered all the expressions of the council government speech, rather than private speech. As such, it is not subject to First Amendment protections.
In early 2017, the U.S. district court, based on the Findings and Recommendations of the magistrate judge, awarded R-CALF USA the preliminary injunction it sought. Soon after, the USDA executed similar MOUs with over a dozen other state beef checkoff councils.
In determining whether R-CALF USA was eligible to receive attorney fees and costs under the Equal Access to Justice Act (EAJA), the district court found that the USDA’s execution of its MOUs sufficiently transformed the preliminary injunction into the lasting outcome that R-CALF USA sought – “an end to USDA’s allegedly unconstitutional government-compelled subsidy of speech.” Thus, the court found that R-CALF USA was a ‘prevailing party’ under the EAJA.
The district court further found that USDA’s decades-long conduct in operating the beef checkoff program prior to R-CALF USA’s litigation was not substantially justified and stated: “USDA should have known that the program that R-CALF challenged was unconstitutional . . .” It also found that USDA’s “litigation position lacked a reasonable basis in law and was therefore not substantially justified.”
“This is a significant ruling for the First Amendment and for independent American ranchers because it holds that the checkoff program had been unconstitutionally administered since 2005,” said Kellan Smith of the Public Justice Food Project, attorney for R-CALF USA who added, “Also, it is significant for everyone because the substantial public cost of this litigation is a result of the USDA’s decision to repeatedly defend unconstitutional policies benefitting multinational beef corporations on the taxpayer’s dime.”
“We are pleased that we’ve accomplished through the judicial branch of government some meaningful reforms of the beef checkoff program that we’ve been unsuccessful in achieving through the other two branches for decades. Though a minor victory, this one is extremely important because it signals to U.S. cattle producers that by working together we can begin righting the deeply entrenched wrongs that continue to undermine the interests of independent U.S. cattle producers,” said R-CALF USA CEO Bill Bullard.
R-CALF USA is represented by David Muraskin and Kellan Smith, attorneys with Public Justice, a public interest law firm in Washington, DC; J. Dudley Butler of the Butler Farm & Ranch Law Group; and Bill Rossbach of Rossbach Law, P.C. in Missoula, Montana.
— to www.tsln.com