Supreme Court to hear case on downed livestock

McClatchy NewspapersNovember 7, 2011 

WASHINGTON — California's ban on the commercial slaughter of downed livestock will come before the Supreme Court on Wednesday, in a case that pits state vs. federal power.

Gruesome videos and gory facts drove California lawmakers to impose the ban on downed-animal slaughter. Justices, though, will be focused on something a little more antiseptic: whether federal law pre-empts the 2008 state law.

The Obama administration says it does, siding with the National Meat Association in challenging California's prohibition.

"If enforced," Solicitor General Donald Verrilli Jr. argued in a legal brief, the California law "would have a significant potential to create confusion and confrontation between those federal inspectors and state officials."

California lawmakers, allied with Humane Society of the United States activists who exposed the slaughter of downed animals at a San Bernardino County facility, claim that states have the authority to act on their own.

"Cruelty to animals, in particular, has traditionally been regulated by the states, going back nearly 400 years to the Massachusetts Bay Colony," noted J. Scott Ballenger, an attorney for the Humane Society and other groups.

Ballenger, in his legal brief supporting California, cited the 17th century colony's prohibition, written in the language of the time, against "any Tirrany or Crueltie towards any bruite Creature which are usuallie kept for man's use," as well as less archaically spelled modern state regulations.

The state law in question governs the handling of downed livestock, sometimes called non-ambulatory. These are animals that are so sick or weak that they can't stand on their own. The California law bans their commercial slaughter. Federal law similarly bans the use of downed cattle, but permits the use of downed swine and sheep.

But the case, called National Meat Association v. Harris, and the hourlong oral argument Wednesday morning, concerns much more than a turf struggle. The outcome could tilt the balance in a perennial struggle between state and federal authority.

It's for this reason that Alaska, Washington and 11 other states are siding publicly with California, while the U.S. Chamber of Commerce is siding with the meat association and livestock industry.

The states want to be able to pass their own laws on a variety of issues without federal action constantly upstaging them. As protection, they want the court to sustain what they call the "long-held" policy that presumes state laws aren't pre-empted unless the federal law explicitly says so.

The Chamber of Commerce, a frequent critic of state laws it deems too onerous, argues from the other side for a more limited presumption against pre-emption.

"The chamber ... is keenly interested in ensuring that the regulatory environment in which its members operate is a consistent one," attorney Kenneth Geller, who's representing the business group, argued in a legal brief.

California's Los Angeles-based deputy attorney general, Susan K. Smith, will represent the state Wednesday, matched up against Minneapolis-based lawyer Steven Wells, who represents the meat association, and an Obama administration lawyer.

Their abstract arguments will have roots in a gritty undercover investigation by the Humane Society of the United States. In January 2008, the organization released a video that depicted brutal treatment of livestock at the Hallmark Meat Packing Co. and the Westland Meat Co. Inc., in Chino, Calif.

The video showed non-ambulatory cows, unable to stand or walk without assistance, being kicked, electrocuted, dragged with chains and rammed with forklifts.

"Footage also showed some workers trying to get ... cows to stand by spraying pressurized water into their noses to simulate drowning," the 9th U.S. Circuit Court of Appeals subsequently recounted.

The resulting outcry triggered the largest beef recall in U.S. history, covering more than 143 million pounds of meat.

After the recall, the California Legislature toughened the state's law governing slaughterhouses. The new law prohibited using non-ambulatory pigs, sheep, goats or cattle; the law further required that the downed animals be euthanized.

The National Meat Association successfully argued before Fresno, Calif.-based U.S. District Judge Lawrence J. O'Neill that the Federal Meat Inspection Act pre-empted the state law. The federal law permits the slaughter and sale of downed swine and sheep if they've passed safety inspection.

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