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Eighth Circuit Allows Checkoff To Continue During Appeal To Supreme Court

The U.S. Court of Appeals for the Eighth Circuit on Wednesday approved a request that will allow the Beef Checkoff Program to continue while the U.S. Department of Justice seeks Supreme Court review of a case challenging the program's constitutionality.

With the stay in place, producers must continue to pay the mandatory $1-per-head checkoff each time a bovine animal is sold as the case moves forward toward the Supreme Court.

"The government's motion to stay the mandate of this court is granted pending the filing of a petition for a writ of certiorari with the United States Supreme Court," the decision notes. "The issuance of the mandate in this case shall be stayed to and including Jan. 27, 2004. If within that time there is filed with the Clerk of this court a certificate of notification by the Clerk of the Supreme Court that a petition for writ of certiorari has been filed, this stay shall continue until final disposition of the case by that court."

In effect, the decision extends the stay on an injunction that District Judge Charles Kornmann of South Dakota issued in June 2002. The injunction called for ending the checkoff program on the grounds that it violates some cattle producers' First Amendment rights by forcing them to pay for beef promotion messages with which they do not agree. Specifically, plaintiffs have complained that the checkoff promotes beef, in general, rather than just U.S. beef. Importers also pay the checkoff assessment.

In July 2003, a panel of three judges at the Eighth Circuit Court of Appeals agreed with Kornmann's ruling, and in August 2003, the U.S. Department of Justice took the next step in the legal appeals process when it requested a rehearing by the full panel of judges at the Eighth Circuit. On Oct. 16, the Eighth Circuit denied that request, and the Department of Justice followed on Oct. 17 by filing the request for a stay on the injunction.

At the same time this case is unfolding, the Court of Appeals for the Ninth Circuit has been asked to consider an opposing ruling - declaring the Beef Checkoff Program constitutional. U.S. District Judge Richard Cebull of Montana issued that ruling in favor of the checkoff in November 2002 - based on the exact same trial transcript as the South Dakota case but reaching a different conclusion.

The USDA and Department of Justice have stood strong behind the checkoff program throughout the legal challenge in the Eighth Circuit - brought by the Livestock Marketing Association (LMA), the Western Organization of Resource Councils (WORC), and three individuals in an earlier petition. Defendants in the case include the USDA, the Cattlemen's Beef Promotion and Research Board, and Nebraska Cattlemen, leading a group of producers as interveners in the case.

"During the ongoing appeal process, the Beef Board will continue - as it has throughout the course of this litigation - to work to strengthen the position of beef in the marketplace and expand uses for beef and beef products," said Beef Board Chairman and Florida cattleman Andy Tucker. "Demand for our product continues on a strong upward trend this year, and we continue to develop programs to maintain that growth long-term."

In annual independent surveys conducted since the launch of the beef checkoff 17 years ago, producers have repeatedly voiced strong support for the program, Tucker said. In the latest survey, released in July 2003, about 63 percent of producers said they approve of the Beef Checkoff Program.

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