Beef Checkoff (R-CALF v. Vilsack and R-CALF v. USDA)

Beef Checkoff (R-CALF v. Vilsack and R-CALF v. USDA)

R-CALF challenges the checkoff’s First Amendment violations (R-CALF v. Vilsack et al., D. Mont.)

We were lead counsel on behalf of the nation’s largest organization of independent cattle producers, R-CALF USA, in a suit raising a First Amendment challenge to the administration of the Beef Checkoff program in Montana, Hawaii, Indiana, Kansas, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin.

In these states, ranchers have to pay a $1 tax per head of cattle sold into a checkoff fund allegedly to promote beef consumption. By default, for every $1 the government collects from ranchers, it hands 50 cents to the private state beef council. These state beef councils have used these funds to promote the interests of multinational corporations rather than independent ranchers — like when the Montana Beef Council used checkoff money to advertise for Wendy’s, which does not commit to buying meat from Montana or even United States ranchers. We argued that the checkoff is a form of compelled speech, and that the government failed to properly regulate how that money has been spent.

We won an injunction against the collection of checkoff funds in Montana on these grounds, with the district court finding that because USDA lacked sufficient control over the state beef councils’ use of checkoff funds, the collection of those funds from independent ranchers was likely unconstitutional compelled speech. The U.S. Court of Appeals for the Ninth Circuit upheld that decision. We then asked for a halt to the collection of checkoff funds in the remaining states in question. But before the district court reached its decision, the state beef councils in question entered into Memoranda of Understanding with USDA. These MOUs are agreements that require the state beef councils to share certain information with USDA and allow USDA to pre-approve the state beef councils’ spending on certain contracted plans.

While the MOUs address some of R-CALF’s concerns, they do not fix the whole problem. R-CALF asked the courts to consider whether the MOUs provide enough control over the checkoff money, appealing all the way to the Supreme Court, but the Supreme Court declined to take the case.

 

R-CALF challenges unlawfully entered agreements between USDA and state beef councils (R-CALF v. USDA, D.D.C.)

The MOUs between USDA and the state beef councils are not just insufficient at controlling checkoff spending — their creation was also unlawful. That’s why we are representing R-CALF in a lawsuit against USDA for violating the Administrative Procedures Act (APA) when it entered the MOUs. The APA requires the government to give a notice and comment period when making a new rule so that the public has an opportunity to share their thoughts for the government to consider.

We’re back in court because R-CALF’s members are entitled to have their voices heard on decisions about how their checkoff dollars are spent. But instead of following the law, USDA made private, closed-door deals with the state beef councils to avoid public and judicial scrutiny stemming from our first checkoff case.

In this case, both parties have briefed motions for summary judgment on standing. Our briefs lay out how the checkoff program harms domestic producers like R-CALF’s members and why that means R-CALF can sue USDA.