Amicus Curiae Brief — Nebraska Cattlemen, Inc. v. Livestock Marketing Assn.

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Sate oo, i “YEG ] i

Nos. 03-1164 and 03-1165 ~~"

In the

Supreme Court of the United States

ANN VENEMAN, SECRETARY OF AGRICULTURE, ef al,

Petitioners.

Vv.

LIVESTOCK MARKETING ASSOCIATION, ef a/..

Respondents.

NEBRASKA CATTLEMEN, INC., ef a/..

Petitioners.

Vv.

LIVESTOCK MARKETING ASSOCIATION, ef al..

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE CAMPAIGN FOR

FAMILY FARMS AND 49 FAMILY FARM

AND RANCH ORGANIZATIONS

IN SUPPORT OF RESPONDENTS

Susan E. Stokes

Counsel of Record

David R. Moeller

Karen R. Krub

FARMERS’ LEGAL ACTION GROUP, IN

360 North Robert Street, Suite S00

Saint Paul, MN S510]

(651) 223-5400

October 15, 2004

QUESTION PRESENTED

Whether the Beef Promotion and Research Act of 1985

(Beef Act), 7 U.S.C. 2901 et seg., and the implementing Beef

Promotion and Research Order (Beef Order), 7 C.F.R. Part

1260, violate the First Amendment insofar as they require

cattle producers to pay assessments to fund generic

advertising with which they disagree.

TABLE OF CONTENTS

: Page

QUESTION PRRIGUEIS 0 BiB ic ccccccescesccccssccssssscsscccsensessosnedesinannnns i

TABLE OF COUNT IBIN EG Geccccccossssscscccssseccesscsssssensssnesnessssnnnasis il

TABLES Gi ACs TROUIIRs 6 Bete ccccscssccsccscnscscesccsesossssonssssnsnnensennt iv

STATEMENT OF TNT TIRIS 6 scccesccccscccccsscscscccesonsssescessecseess l

SUMMARY OF ARGUMENT .......::sssssssssssssssosssesesscesseoeseees 6

ARRIUINGIIIN © scccescccoseccosscosecescosssssesesosennssesensenseneenenenensnesiainnnnln 7

I. THE BEEF ACT VIOLATES RANCHERS’

FIRST AMENDMENT RIGHT OF FREEDOM

OR ASSOCIATION, wncccccssccscsssscccssccccessssssensossossoneses 7

A. The Beef Act Compels Ranchers To

Associate With Groups and Speech They

B. The Beef Act Serves the Interests of

Packers and Retailers and Not a Paramount

Governmental Interest, Making Packers and

Retailers the True Free Riders of the

CRROGEIOEE, cocccccccosccnsecscodasncsnsensammeaniensiieaiannannnaas 13

Il. THE BEEF CHECKOFF VIOLATES

RANCHERS’ FIRST AMENDMENT RIGHT

OF FREEDOM OF SPEBCIA. ...ccsssssscssssscssssesensseses 17

A. Checkoff-Funded Speech Is Inextricably

Intertwined With Expressly Ideological

And Politically Partisan Speech. ..............0000 17

B. The Beef Checkoff, Paid Solely By

Ranchers To Benefit The Beef Industry,

Fails The Central Hudson Test. .........cccccceeees 22

1. The government’s interest is not

CRONE ncerccecanccessossensentennansasenmaananan 23

2. The beef checkoff does not directly

advance any asserted government

SEIRGBOGR. ..cccccaccscsecoesseconcenisentensianenaiaaainanl 25

ili

3. The beef checkoff is far more extensive

than necessary to serve any asserted

governmental interest. ..............0cccceeeeeees 26

SIIIITTITTTTTiieiahdai ins hdeteiondinscncenicninnasseneseceesccsccceneceusceeeet 30

TTT hipeeetdeinieietietntnerinenoceetntennensessescesecsseseesseeneees A-1l

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Bd. of Educ., 431 U.S. 209

(5, ae passim

Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60

GE exntncepnstictnnsimnncinannntmemeeeienemeienbesemeniaiemaninias 18

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)... 13

Buckley v. Valeo, 424 U.S. 1 (1976) ......ccccccccceeeeeeeeerereeeees 13

Central Hudson Gas & Elec. Corp. v. Public Ser.

Comm 'n, 447 U.S. 557 (1980) ......ccccccceeseeseerceeeeeeees passim

Charter v. USDA, 230 F. Supp. 2d 1121 (D.

EE, Te ccscnnsntconccvesineniitieensiiiiniitasennitisiieinbtaeiantiateniianiaia 20

Cincinnati v. Discovery Network, Inc., 507 U.S. —

Ge iccccictiicatarensciatitinnsiassaniasinnsliannecinitindiidaiianitasiseiaiinias 17

Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004)

petition for cert. filed (U.S. Sept. 30, 2004)

Ss Ge inxictrsaticcsesstentnnsadnsniananiddenitmiuasiiniaat 19, 20, 23

Edenfield v. Fane, 507 U.S. 761 (1993) .......cccccecceeseeeeeeees 23

Ellis v. Brotherhood of Ry., 466 U.S. 435 (1984)...........004 16

Elrod v. Burns, 427 U.S. 347 (1976) ...........ccccssescesssseeeeeeees 13

Glickman v. Wileman Bros. & Elliott, Inc., 521

Ss Ga ITs ccinsennsinirinnisntticeeaniebianomndtebadateadeteeahdadhiaatnmateial passim

Greater New Orleans Broad. Ass'n v. United

PR a 0 25

Keller v. State Bar of Cal., 496 U.S. 1 (1990)... 8,13

Kusper v. Pontikes, 414 U.S. $1 (1973).......ccccccscceseeeeeeeseees 13

Larson v. Valente, 456 U.S. 228 (1982) ..........cccccccccceeeeeeeeeee 7

Lassiter v. Dep't of Social Services, 452 U.S. 18

ETI sncesestsicesecneetenscivneenienestesieciabamnintiidetdaaiaiiidaaidteesnesisanuenaiesheaimnisiaatl 27

Lathrop v. Donohue, 367 U.S. 820 (1961) ......cccccccccceereeeeees 13

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

Livestock Mktg. Ass'n v. USDA, 132 F. Supp. 2d

Se Ee Sree iitotnsicintenesineneinlcnnasietennpiatinensinnesnemamnees 10

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

SEITE Ta icienritcneiceniectaieanrtabintateensnnendensetiiiensentinnsienipsatesiieimninipimnatninas 29

Michigan Pork Producers Ass'n v. Campaign for

Family Farms, 229 F. Supp. 2d 772 (W.D.

PR>. St rcemunsnenunnemninninmennnememenmeseetianened passim

Michigan Pork Producers Ass'n v. Veneman, 348

F.3d 157 (6th Cir. 2003) petition for cert. filed

sub nom. Veneman v. Campaign for Family

Farms (U.S. Feb. 19, 2004) (No. 03-1180).............. 2, 8, 24

NAACP v. Alabama, 357 U.S. 449 (1958).............. Siaieenaauaniite 7

NAACP v. Claiborne Hardware Co., 458 U.S.

UN siiiceribcieiieenabeiendinciaiutaideihinthentiilalaiclet 7

New York Times Co. v. Sullivan, 376 U.S. 254

IOI lhecrmiienichiaeihein dani ada 18

Nike, Inc. v. Kasky, 539 U.S. 654 (2003)........0ccccccccccecsceeeeeee 17

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

STi nade 17

Pelts & Skins, LLC v. Landreneau, 365 F.3d 423

(Sth Cir. 2004) petition for cert. filed

(U.S. June-30, 2004) (No. 04-23)... cccccccesseeessreeeeeeees 27

Riley v. Nat'l Fed'n. of the Blind, 487 U.S. 781

SET iasnsinsintninnianedencienaianseniiianionmuememndetmasitianiniaiaapaiansiies 18

Roberts v. United States Jaycees, 468 U.S. 609

[ESI aET a ssniciceshciiomintitveiinniidasieeasnataaidtepnasienituntitieadaaieiaaaaaatemmaaiaiaiaeaiis 7

Ry. Employees’ Dept. v. Hanson, 351 U.S. 225

SETI tcasssisnsicienicipeniunsaieumtenieteneemniapdintnmnniiimeemanepmems 13, 16

Thompson v. W. Med. States Ctr., 535 U.S. 357

SETIIITUTTTI taininsesstenescinensindisentenchiesecienneaittanalindpimnatatiasbbuseepaiiaeepabiiauaseds 26

United Foods, Inc. v. United States, 197 F.3d 221

SUSTEE TITEL: SIPIII erstesscherennsnidbiainibintbensntitaitanincinasiaiininiieaetamamaatintanses 16

United States v. Frame, 885 F.2d 1119 (3d Cir.

1989), cert denied, 493 U.S. 1094 (1990) 0000... 23,24

United States v. United Foods, Inc., 533 U.S. 405

0 | ee passim

Virginia Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)... 17

West Virginia Bd. of Educ. v. Barnette, 319 U.S.

EO Ee cecctcncenesnnncsnctsneninsenseins.: insane 8

Wooley v. Maynard, 430 U.S. 705 (1977) ....ccccccceceeeceeeeeeeees 8

Constitutional Provisions

CTS, CGMIGE, GING, B cccccccccccescosesssnesesescecsusevsssssnnmmunnacats passim

Statutes

oT Al ee 27

8 Cie 0 NID eccnecccessensevtinicctecnsansinineninnsmenesmenunesianeaanens 28

fk AR 25

F UL. 6 FIRE CI Op cenecececscenscrecseesevscenscssssseees 14, 23

F Stile 0 Be ieccctensasctscsnicsenensisitiinbinannensnmemantnecianaiants 29

Fle Oe cciecccincninitccciscedncicnisciinsiniiaiaibinsuisiniaientencenmnanes 28

Fre ON cvcensntncscinoccsesnsinieneesbsasnesenenstoatinisiiapatia 28

Felis Oe I cnittasennsitcsnssininicentninintnsiiesianiniuessensctsieameenats 28

Fins Fo ciicciiicnatiscrenseniintniitianicmmininanememnennnnnetnn 28

Fn OF PD ccrcnsictconenseselscinssinicenieeeaiisiatinaivainincuameneatimmeetion 28

F Oils Ge FE DOPED cocennirenccsssnssnncesentescssssesensenntenmnonenets 25

pk Ee 28

Fee: eh Peeieceaeenunseisicistecisiiesiigileaindaiiaiasauaniinasieadinniannaaes 27

Pub. L. No. 107-171, § 10816, 116 Stat. 134

IST sssicicosnihieineeeiageetaeseieietaiaiitatpiadeasniabaiendinini 12

Pub. L. No. 108-199, § 749, 118 Stat. 3 (2004)............. 12

Rules

heh 8 A |

BU, CO, BR, BF cece ccncccecernsenjuteosneccemsamnnsestassessenmmnsaniateninsiats l

Vil

Regulations

67 Fed. Reg. 63,070 (Oct. 10, 2002).....cc.ccccsssssssseessseeesseeeen 27

ne 28

69 Fed. Reg. 42,030 (July 13, 2004)... ccceceeeeeeeeeeeeees 15

FM. Well iercaiciissnesncssnennintaitininsitetntenienniinndmenenemebnentiian 27

a | 28

a ee OF HE csrercninncnsnnincnrscnpnicnanisncctcanitattenennanemianaitin 28

Legislative Materials

150 Cong. Rec. $174-S175 (daily ed. Jan. 22,

TET seistninsatiitinrnastarsinniapiiinuiinpiiadiddinimastiipimenenimnmesiensienin 12

H.R. Rep. No. 584, 108th Cong. (2004) .0.......cccccceeeeeeeeeeees 27

S. Rep. No. 340, 108th Cong. (2004) .0.......ccccceccceeeeeteeeees 27

Other Authorities

Albert E. Bergh, ed., 5 The Writings of Thomas .

I niece aictineitaninciieiaiaaiidi ail diniaicaiiaimiganiinss l

American Lamb Board, Nutrition: Lamb v. Other

Meats, available at http://americanlamb

board. org/?page=site/text&nav_id=d04debdf9e

Fe erterccensicanenensmnnnenenenpncemnemesnes 24 -

Cattlemen’s Beef Board, 2003 Beef Board Annual

Report (2004), available at

http://www.beefboard.org/documents/2003%20

CBB Press Release, Beef Demand Stabilizes After

20-Year Slide (Jan. 26, 2000), available at

http://www.beefboard.org/dsp/dsp_content.cfm

?locationlId=1071 &contentTypeld=2&contentl

viii

CBB Press Release, Defining the Separate Roles

of the Beef Board and Other Checkoff Players

(Dec. 5, 2003), available at http://www.beef

board.org dsp/dsp_content.cfm?locationlId=107

1&contentTypeld=2&content]d=2383 .........cccccccececeeeeeees 10

Clement E. Ward, Concentration in the Red Meat

Packing Industry, at Role of Captive Supplies in

Beef Packing (1996), available at

http://www.usda.gov/gipsa’pubs/packers/conc-

RB ese ccceccnsncsesonsencnsscocsnssssssnsssnenssninnmmnenensensesenees 4

Jerry Hagstrom, COOL Battle Far From Over,

AgWeek, Dec. 8, 2003, available at

http://www.grandforks.com/mld’grandforksher

I Pe icccrntrttnnsnnannnnnsamicsnnnianrennenestnnaibastion 12

Kenneth H. Mathews, Jr., U. S. Beef Industry:

Cattle Cycles, Price Spreads, and Packer

Concentration (Apr. 1999), available at

http: www.ers.usda.gov publications/tb1874/tb

EP IIIT suconintsvnscntnndarsanssnenssmetniansenminensneneiminneetion 19

National Pork Board, Hog Marketing Contract

Study (Jan. 2004), available at

http: agebb.missouri.edu/mkt vertstud04.htm................+. 4

NCBA Press Release, Beef Checkoff Educates

Consumers About Irradiated Beef (May 11,

2004), available at http://www.beef.org/dsp

‘dsp_content.cfm?locationld=45&contentT ypel

IED ccecseccternnssonienempisetetinseneeniuemmenenenes 20

NCBA Press Release, NCBA PAC Endorses

President George W. Bush (Aug 13, 2004),

available at http://www.beef.org dsp

dsp_content.cfm?locationId=45&contentT ypeld

ITI cxccsctesinsonieseminnientannincsnenasienseaunintestiniein 11

Neil D. Hamilton, Putting a Face on Our Food:

How State and Local Food Policies Can

Promote the New Agriculture, 7 Drake J. Agric.

hs: SEE UE crsaincicncnicindatitintanniaseiniaseuainipiidinpbiniabadmnesciacinte 27

Note, Challenging Concentration of Control in

the American Meat Industry, 117 Harv. L. Rev.

PE GD caseneerecnccassensecsesnsorcannanemnesnsceesetanseunsssoniess

NPB Press Release (April 16, 2002), available at

http://www.porkboard.org/News/NewsEdit.asp

TTT ci ccisasnitinaseadieebesianinhedatienimaniinriniatiatiiednins

NPB Press Release (June 18, 2001), available at

http://www.porkboard.org/News/NewsEdit.asp

OO ice tatalaal initials cena tiniatiaibaiataieesiaininiandteiias

NPB Press Release, (June 7, 2001), available at

http://www.porkboard.org/News/NewsEdit.asp

| TENT a eee TENET Oe ENTREE

Oral Argument Tr., United States v. United

Foods, Inc., No. 00-276, (Apr. 17, 2001).............00.

Philip Brasher, Politics Thrusts Ag Stakes Higher,

Des Moines Register, Aug. 29, 2004 ........cccccecceeeees

Robert A. Hoppe, Structural and Financial

Characteristics of U.S. Farms: 2001 Family

Farm Report, USDA ERS Agriculture

Information Bulletin No. 768 (May 2001),

available at http:www.ers.usda «ov

/publications/aib768/aib768. pa. .......ccccceceeeeeeeeeees

Roger A. McEowen, The 2002 Senate Farm Bill:

The Ban on Packer Ownership of Livestock,

7 Drake J. Agric. L. 267 (2002) ......0ssccorcrssrecssssseesees

Speech Transcript (Aug. 31, 2004), at

http://georgewbush.com/FarmAndRanch/Read.as

STE Oe cciseninnrintuscanmscccssnenntienmnstiiabetinenacssecssscese

Terence P. Stewart, Trade and Cattle: How the

System is Failing an Industry in Crisis, 9 Minn.

J. Global Trade 449 (2000) .............:ccccccecesssssereseeeeees

The PigSite News Print, US Swine Economics

Report (May 19, 2004), available at

http://www.thepigsite.com/LatestNews/print-

ad) f EEE

penepeces 4

Thomas Jefferson, Virginia Act for Establishment

of Religious Freedom (1786), codified at

oS SES YN Se

USDA ERS, Dairy: Background (July 6, 2004),

available at http://www.ers.usda.gov/

Briefing/Dairy/Background. htm .............cccceeeeneees

USDA NASS, Number of All Cattle and Beef

Cow Operations, United States, 1988-2003

(Apr. 30, 2004), available at http://www.usda.

gov/nass/aggraphs/acbe_ops. htm ............cccceeeeeeeees

USDA Nat’! Comm'n on Small Farms, A Jime to

Act: A Report of the USDA National

Commission on Small Farms (Jan. 1998),

available at http://www.csrees.usda.gov/nea/

ag_systems/pdfs/time_to_act_1998.pdf..............065

USDA, GIPSA, Assessment of the Cattle and Hog

Industries: Calendar Year 200] (June 2002),

available at http:/ www.usda.gov/gipsa

pubs/0lassessment 01 assessment. pdf .............0000064

USDA, GIPSA, Captive Supply of Cattle and

GIPSA's Reporting of Captive Supply (2002),

available at http: www.usda.gov/gipsa

‘pubs captive_supply captivesupplyreport.pdf..........

USDA, Nutrition and Your Health: Dietary

Guidelines for Americans (5th ed. 2000),

available at http:/ www.health.gov/ dietary

guidelines dga2000, document choose. htm ...............

USITC Inv. 701-TA-386, Letter to Lynn Bragg,

Chair, U.S. International Trade Commission

GER, Dy FOOD vccnseresinererseneenereveressonsapnnernenncenioncsanencecse

www.beef.org dsp dsp_content.cfm?locationlId=4

4&contentTypeld=2&contentld=2648 .......0.......004.

www .beef.org dsp dsp_locationContent.cfm?locat

IG Sininsitinaiitsiieaicnniticiasitisctntsnciieatentieanltiniiniinintianmnaieni

I seicecnieimneitivininieniianiniinnniin

wunwere 4

www.beefboard.org/documents/dairy_nutrition%

El vintensaistnniencntiieearsineiinessieunteannisininbianeinimmnenin 10

www. beefitswhatsfordinner.com/ads/default.asp .................. 9

www. beefitswhatsfordinner.com/ads/tv.asp ...........c:.c0e0e0s 8

www.beefitswhatsfordinner.com/askexpert/inthen

I ca teicteennieinieelainitatinstnteciiieariaitcieanapiancntnnitenieraenaniatainsinn 10

www.beefitswhatsfordinner.com/footer/aboutus.asp ............ e)

a cesiscscisenisthniniesidintnintaiisiaitiiatiniatiniignaulincsinnniaiia 21

www.dairycheckoff.com/check/hi0904.asp..........cccccceeees 21

www.ers.usda. gov/Briefing/FarmIncome/Data/Hh

sciiMUUIITTD secassibiacteieeaeaiennitniiiitabatalaeeemaatethinmannnnsiin 21

www.usda.gov/agency/obpa/Budget-

SUMMA Y/ZOOS/ 19. BSE. WAM.....00rsecrserseseceeserressvecssensenseees 27

www.whymilk.com/celebrity_archive.htm.................cc000008 i)

www.whymilk.com/celebrity_cc_history_vint.htm .............. 9

STATEMENT OF INTEREST’

“Cultivators of the earth are the most valuable

citizens. They are the most vigorous, the most

indepermient, the most virtuous, and they are tied to

their country and wedded to its liberty and interests

by the most lasting bonds.” 5 The Writings of

Thomas Jefferson 93 (Albert E. Bergh ed.) (1905).

“To compel a man to furnish contributions of

money for the propagation of opinions which he

disbelieves and abhors is sinful and tyrannical.”

Michigan Pork Producers Ass'n v. Campaign for

Family Farms, 229 F. Supp. 2d 772, 774 (W.D.

Mich. 2002) (MPPA 1) (quoting Thomas Jefferson,

Virginia Act for Establishment of Religious

Freedom (1786), codified at Va. Code § 57-1).

These two Jeffersonian ideals are melded by Amici

Curiae the Campaign for Family Farms (CFF) and 49 family

farm and ranch organizations’ who join Respondents in their

opposition to the Beef Act’s mandatory promotion program

(beef “checkoff’).

CFF is a coalition of family farm organizations whose

hundreds of hog farmer members oppose paying the

mandatory pork checkoff. CFF conducted a petition drive that

resulted in a USDA-conducted referendum on the pork

checkoff program in which the majority of participating hog

farmers voted to terminate the program. Secretary of

Agriculture Veneman refused to honor the referendum.

' Pursuant to Sup. Ct. R. 37.6, no counsel for any party to these

proceedings authored, in whole or in part, this Amici Curiae brief. No

other entity or person, aside from the Amici, made any monetary

contribution for the preparation or submission of this brief to the Court.

This brief is filed pursuant to Sup. Ct. R. 37.3(a). The requisite consent

letters have been filed with the Clerk.

2 Amici are listed in the attached Appendix.

MPPA I, 229 F. Supp. 2d at 775. After this Court’s decision

in United States v. United Foods, Inc., 533 U.S. 405 (2001),’

CFF and four individual hog farmers, James Dale Joens,

Richard Smith, Rhonda Perry, and Lawrence E. Ginter, Jr.,

brought a claim before the United States District Court for the

Western District of Michigan alleging that the pork checkoff

violates hog farmers’ First Amendment rights of freedom of

speech and association. MPPA I, 229 F. Supp. 2d at 775. On

October 25, 2002, the district court granted CFF’s motion for

summary judgment, holding that the pork checkoff was

“unconstitutional and rotten” and violated hog farmers’ First

Amendment rights of free speech and association. /d. at 791.

The Sixth Circuit affirmed the district court’s ruling, finding

that the pork checkoff compels hog farmers “to express a

message with which they do not agree.” Michigan Pork

Producers Ass'n v. Veneman, 348 F.3d 157, 163 (6th Cir.

2003) (MPPA Il) petition for cert. filed sub nom. Veneman v.

Campaign for Family Farms (U.S. Feb. 19, 2004) (No. 03-

1180).

Joining CFF in submitting this brief are 49 family farm

and ranch organizations with members from all 50 states.

These organizations represent hundreds of thousands of

family farmers and ranchers who raise cattle, hogs, other

livestock, and poultry; milk dairy cows; grow corn, soybeans,

and other commodities; and produce and market locally

grown fruits and vegetables. The organizations include the

National Farmers Union (an organization of 250,000

members), the National Family Farm Coalition (a coalition of

21 family farm groups), the National Farmers Organization,

the Federation of Southern Cooperatives, the Intertribal

Agriculture Council, state cattle and ranch organizations, state

and national sustainable agriculture organizations, and other

> CFF joined family farmers and ranchers in filing an Amici Curiae

brief in United Foods urging this Court to affirm the Sixth Circuit's

ruling.

leading state and national farmer-based organizations. Amici

strive to build sustainable rural communities, promote

responsible stewardship of soil, water, and other resources,

and ensure that land can be farmed and grazed for future

generations.

Amici represent hundreds of thousands of “cultivators of

the earth” who pay and ardently oppose mandatory

agricultural checkoffs, which compel them to fund

objectionable ideological speech that is aligned with private

industry organizations’ policies. These policies must be

viewed in the context of the dramatic changes in agriculture.

Agribusiness corporations are consolidating and controlling

increasingly more agricultural industries.* Note, Challenging

Concentration of Control in the American Meat Industry, 117

Harv. L. Rev. 2643 (2004). As the number of meatpackers

shrinks, ranchers find themselves with at most three

meatpackers to buy their cattle, and in some markets only

one. Roger A. McEowen, The 2002 Senate Farm Bill: The

Ban on Packer Ownership of Livestock, 7 Drake J. Agric. L.

267, 274 (2002). USDA’s Small Farms Commission

observed: “Concentration translates into the loss of open and

competitive markets at the local level .. . . The basic tenets of

a ‘competitive’ market are less and less evident in crop and

livestock markets today.” USDA Nat'l Comm’n on Small

Farms, A Time to Act: A Report of the USDA National

Commission on Small Farms, 4-5 (Jan. 1998), available at

http://www.csrees.usda.gov/nea/ag_systems/pdfs/time_to_act

_1998.pdf.

With fewer marketing options come lower prices for

farmers and ranchers, driving them into unfavorable

* Four meatpackers control over 81% of the cattle slaughter industry

and four meatpackers control 56% of the hog slaughter industry. USDA,

GIPSA, Assessment of the Cattle and Hog Industries: Calendar Year 2001

18, 38 (June 2002), available at http://www.usda.gov /gipsa/pubs/0 1 assess

ment/01 assessment.pdf.

contracts’ or out of business.° /d. at 36-37; Clement E. Ward,

Concentration in the Red Meat Packing Industry, at Role of

Captive Supplies in Beef Packing (1996), available at

http://www.usda.gov/gipsa/pubs/packers/conc-rpt.htm#chap3.

For those ranchers who remain, there have been multiple

years of raising cattle with significant financial losses, forcing

ranchers to give up health insurance, take off-ranch jobs to

supplement income, and incur more debt. Terence P. Stewart,

Trade and Cattle: How the System is Failing an Industry in

Crisis, 9 Minn. J. Global Trade 449, 455-86 (2000).

Approximately 33% of the United States cattle supply is being

marketed through contracts to meatpackers. USDA, GIPSA, Captive

Supplv of Cattle and GIPSA's Reporting of Captive Supply at viii (2002),

available at __http://www.usda.gov/gipsa/pubs/captive_supply/captive

supplyreport.pdf. In the hog industry, more than 88% of hogs were

committed to packers through ownership or contractual arrangements in

2004, up from 56° in 1997. National Pork Board (NPB), Hog Marketing

Contract Study (Jan. 2004), available at http://agebb.missouri.edu

mkt vertstud04.htm.

* Nationwide, the number of farmers and ranchers fell from 6.8

million in 1935 to fewer than 2 million in 1997. Robert A. Hoppe,

Structural and Financial Characteristics of U.S. Farms: 2001 Family

Farm Report, USDA ERS Agriculture Information Bulletin No. 768, 6-7

(May 2001), available at http:www.ers.usda.gov/publications/

aib768/aib768.pdf. When the beef checkoff became mandatory in 1988,

there were approximately | 350,000 cattle operations in the United States;

as of 2003, the number had diminished to 1,036,000, an almost 24%

decrease. USDA NASS, Number of All Cattle and Beef Cow Operations,

United States, 1988-2003 (Apr. 30, 2004), available at

http: www.usda.gov/nass/aggraphs’acbe _ops.htm. The number of dairy

farms has decreased dramatically from 650,000 in 1970 to approximately

90,000 in the early 2000s. USDA ERS, Dairy: Background (July 6, 2004),

available at http://www.ers.usda. gov/Briefing/Dairy/Background.htm.

The same holds true in the hog industry. In 1980 there were 666,550 hog

farms in the United States; as of 2003, the number had diminished to

73,600. The PigSite News Print, US Swine Economics Report (May 19,

2004), available at _http://www.thepigsite.com/LatestNews/print-

news.asp?display=7577.

The decline in the number of farmers and ranchers

combined with the shift toward consolidation and corporate

control of livestock has had devastating economic effects on

independent family farmers and ranchers and their rural

communities. As acknowledged by 24 United States Senators,

when cattle ranchers suffer, rural communities suffer:

Given that beef cattle production comprises the

largest single component of the country’s

agricultural base, the perilous state of the cattle

industry adversely affects the economic health of

our rural communities and our states as a whole.

When cattle producers go out of business, Main

Street in much of rural America goes out of

business. The crisis in the cattle industry has led to

depopulation of rural areas, the closing of schools

and entire towns, and declining tax bases for local,

county, and state governments. In some states,

families may have to drive a hundred miles or more

to obtain provisions because of the collapse of so

many towns.

USITC Inv. 701-TA-386, Letter to Lynn Bragg, Chair, U.S.

International Trade Commission (Oct. 5, 1999).

In order to preserve and protect rural communities, Amici

have advocated for many years for the strengthening of the

family farm and ranch system of agriculture. In their efforts

to preserve independent family farms and ranches, Amici have

encountered significant opposition from associations that are

funded by and support the beef checkoff and other mandatory

agricultural checkoffs. Amici have witnessed firsthand the

negative consequences the policies of checkoff-funded

organizations have had on America’s family farm and ranch

system of agriculture. Amici and their members object for

economic, ideological, and political reasons to the beef

checkoff and other mandatory checkoffs; they believe the

mandatory checkoffs contribute to further industry vertical

integration and consolidation to the detriment of the family

farm and ranch system of agriculture. The trends described

above will only be exacerbated if the beef checkoff continues

to compel ranchers to fund their own demise. Therefore,

Amici fully support Respondents in urging the Court to affirm

the Eighth Circuit’s ruling that the beef checkoff is

unconstitutional and should be terminated.

SUMMARY OF ARGUMENT

Mandatory agricultural promotion programs compel

farmers and ranchers to fund messages to which they object.

The checkoffs associate all farmers and ranchers who pay the

checkoff with those objectionable messages through

attribution and through the compelled funding itself. They

also compel farmers and ranchers to associate with the private

boards and organizations that administer the programs. Those

organizations spend, collectively, hundreds of millions of

farmers’ and ranchers’ hard-earned dollars each year to fund

programs the farmers and ranchers vehemently oppose. They

use that money to keep their organizations afloat, and use the

credibility derived from being the “voice” of farmers and

ranchers through the checkoffs to lobby against family

farmers’ and ranchers’ interests on political issues.

The purported governmental interest in the checkoff

programs is to stimulate demand for each of the commodities

they promote, yet many of those commodities actually

compete in the marketplace. The government cannot satisfy

its heavy burden to justify the infringement on farmers’ and

ranchers’ First Amendment association rights when the only

interests at stake are the conflicting interests of private

industry participants.

The speech generated by the checkoffs is more than

merely commercial; it is also ideological and political, and the

effects on those compelled to finance it have been degrading

rather than helpful. Because the checkoffs compel farmers

and ranchers to fund ideological and political speech, they

should be subject to the highest level of scrutiny. Under this

Court’s compelled speech precedent, the Beef Act is

;

unconstitutional. Even under an intermediate level of

scrutiny, the beef checkoff is unconstitutional.

ARGUMENT

I. THE BEEF ACT VIOLATES RANCHERS’

FIRST AMENDMENT RIGHT OF FREEDOM

OF ASSOCIATION.

A. The Beef Act Compels Ranchers To Associate

With Groups and Speech They Abhor.

The Court has long embraced the paramount importance

of the constitutional right of association, recognizing that

“{e]ffective advocacy of hoth public and private points of

view, particularly controversial ones, is undeniably enhanced

by group association.” NAACP v. Alabama, 357 U.S. 449,

460 (1958). The Court also has made it clear that the First

Amendment guarantees a “right to associate with others in

pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends.” Roberts v. Unind

States Jaycees, 468 U.S. 609, 622 (1984) (citing NAAC.’ +.

Claiborne Hardware Co., 458 U.S. 886, 907-09, 932-33

(1982); Larson v. Valente, 456 U.S. 228, 244-46 (1982);

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977)).

Freedom of association “plainly presupposes a freedom not to

associate.” Roberts, 468 U.S. at 623 (citing Abood, 431 U.S.

at 234-35). Compelling an individual to financially support an

organization for expressive purposes interferes with the

individual’s First Amendment right to associate for the

advancement of ideas, or to refrain from doing so. Abood, 431

U.S. at 234-36.

Ranchers who pay the mandatory checkoffs are

compelled to associate with the speech of the groups that

administer them. All ranchers are compelled to fund—and

thus associate with—the generic promotion of beef. As

detailed in Respondents’ brief, ranchers believe that beef

raised, slaughtered, and processed in the United States is a

superior product and should be marketed as such. They object

to the generic promotion of beef, including imported beef,

because it tells consumers that all beef is the same, which

they do not believe. U.S. Petition for Certiorari Appendix

(U.S. Pet. App.) 1 la, 35a-37a. Like the mushroom growers in

United Foods, their livelihood depends on the sale of their

product. Also like the mushroom growers, they believe the

generic promotion has a detrimental effect on their livelihood.

Although ranchers are not compelled by mandatory

checkoffs to directly utter the objectionable messages, as in

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943),

they are associated with the speech by being coerced to

support it as a precondition of earning a livelihood. By virtue

of being part of a discrete group that earns their living by

ranching, they alone, and not a general group of taxpayers,

are compelled to fund the message associated with the

checkoffs and the groups that administer them.’ Cf. Keller v.

State Bar of Cal., 496 U.S. 1, 10-11 (1990); Abood, 431 U.S.

at 259 n.13 (Powell, J. concurring).

Even more strongly associating ranchers with the

objectionable speech they are compelled to support is the

visible attribution of the speech to them. See Wooley v.

Maynard, 430 U.S. 705 (1977). Beef checkoff-funded

television ads, which ran more than 1,500 times in 2003

alone, include the attribution line “Funded by America’s Beef

Producers.” Cattlemen’s Beef Board (CBB), 2003 Beef Board

Annual Report, 6 (2004), available at

http://www.beefboard.org/documents/2003%20Annual%20R

eport.pdf; http://www.beefitswhatsfordinner.com/ads/tv asp.

Print ads similarly state that they are “Funded by America’s

Amici join Respondents in asserting that the “so-called government

speech doctrine” is inapplicable here, where the speech is funded solely by

“America’s Beef Producers.” See Keller, 496 U.S. at 10-11; MPPA II, 348

F.3d at 161-62.

Beef Producers.”* See, e.g.,

http://www. beefitswhatsfordinner.com/ads/default.asp.

In addition to being compelled to associate with

objectionable speech, ranchers are compelled to associate

with the organizations that administer the checkoff

programs—associations to which they fervently object. For

example, even though dissenting ranchers are not forced to

become actual members of the National Cattlemen’s Beef

Association (NCBA), their money is used to support it as the

general contractor for the beef checkoff and fund its checkoff-

related expressive activities. See http://www.beefitswhats

fordinner.com/footer/aboutus.asp. NCBA, a private, non-

profit organization, has annual revenues of approximately

$62,500,000, of which 87% comes from ranc

checkoff dollars.” Joint Appendix (J.A.) 185-87. NCBA is

virtually indistinguishable from CBB, the organization

actually charged with administering the beef checkoff.'° The

* The same is true for the pork and dairy checkoff programs. Pork

checkoff-funded communications, such as advertising, press releases,

reports, and producer communications proclaim that they are being

brought to the audience by “America’s Pork Producers.” MPPA 1, 229 F.

Supp. 2d at 786. Dairy checkoff funded advertisements are also attributed

to “America’s Dairy Farmers and Milk Processors.” See

http://www.whymilk.com/celebrity_cc_history_vint.htm (showing tv ads),

http://www whymulk.com/celebrity_archive.htm (showing print ads).

* It is telling that nowhere in Petitioners’ briefs do Petitioners

mention NCBA. jet alone its unbridled power over the beef checkoff.

‘© For instance, a visitor to the website www.beef.org would find it

impossible to discern with any certainty if the website belongs to NCBA,

whose name appears prominently on the home page, or if the website is

the official beef checkoff website. That same home page prominently

displays the “Beef, It's What's Fer Dinner” logo, and bears an icon with a

large red check, apparently neferring to the beef checkoff. Clicking on that

icon directs the reader to a CBB website, which contains only general

information about the beef checkoff. See http://www.beefboard.org/.

Communications to ranchers typically refer the readers to both CBB's and

so-called “firewall” between NCBA’s checkoff-funded

activities and its non-checkoff-funded activities'' has been

referred to by some ranchers as a “myth” and a “joke.” J.A.

197-98, 205. See also, Livestock Mktg. Ass'n v. USDA, 132 F.

Supp. 2d 817, 822-23 (D.S.D. 2001).

The CBB website, which is funded entirely by checkoff

dollars, describes NCBA as follows:

Producer-directed and consumer-focused. NCBA is

the trade association of America’s cattle farmers

and ranchers, and the marketing organization for the

largest segment of the nation’s food and fiber

industry. It is the nonprofit domestic planning and

marketing organization responsible for increasing

demand for U.S.-produced beef and an authority on

beef and its related topics.

The NCBA works on behalf of America’s Beef

Producers and is contracted by the Cattlemen's Beef

Promotion and Research Board.

http: //www.beefitswhatsfordinner.com/askexpert/inthenews.a

sp. NCBA repeats this claim in its checkoff communications.

See, e.g., http://www.beef.org/dsp/dsp_content.cfmlocati

onld=44&contentT ypeld=2&contentld=2648.

NCBA’s claim to be the “trade association of Ameri¢a’s

cattle farmers and ranchers” is objectionable to the many

ranchers who disagree with the mandatory beef checkoff and

the policies of NCBA. Many ranchers have chosen to

associate with other organizations that they believe better

represent their interests, such as Respondent Western

— —

NCBA’s websites. See, eg, http://www.beefboard.org/documents/

dairy_nutrition®«20Dec%2023 pdf.

'' CBB itself admits the alleged distinction is confusing. See CBB

Press Release, Defining the Separate Roles of the Beef Board and Other

Checkoff Players (Dec. 5, 2003), available at http://www.beefboard.org/d

sp dsp_content.cfm?locationId=1071 &contentT ypeld=2&contentld=2383.

Organization of Resource Councils or Amici groups like the

Kansas Cattlemen’s Association, or the South Dakota

Stockgrowers Association. See, e.g., J.A. 200-01, 209, 215-

16, 218-19, 222-23. Indeed, out of the nearly one million

cattle ranchers in the United States, NCBA can claim only

about 33,000 individual members. See http://www.beef.org/

dsp/dsp_locationContent.cfm?locationId=88 1.

Despite many ranchers’ opposition to NCBA’s baldly

political positions, the mandatory checkoff unavoidably

associates all ranchers with NCBA’s political advocacy.

NCBA’s political activism is ostensibly funded with the 13%

of the its budget that does not come from the beef checkoff,

but CBB and NCBA portray NCBA messages as coming

from all ranchers. The www.beef.org website that includes

commingled beef checkoff information and NCBA policy

information (on which NCBA is prohibited from spending

checkoff funds) includes a section of press releases on a

variety of policy issues. One of the more recent releases

announces the decision of the NCBA Board that NCBA PAC

would “endorse and financially support” George Bush

because his policies “most closely match the policies of the

NCBA.” NCBA Press Release, NCBA PAC Endorses

President George W. Bush (Aug 13, 2004), available at

http://www.beef.org/dsp/dsp_content.cfm?locationld=45&conte

ntTypeld=2&contentId=2731. Apparently the reader of the

website is supposed to surmise that this particular press

release was not paid for or associated with the beef checkoff,

since it does not have a little red checkmark next to it.

However, since NCBA’s “unanimous” endorsement was—as

intended—covered by the media (e.g., Philip Brasher, Politics

Thrusts Ag Stakes Higher, Des Moines Register, Aug. 29,

2004), a reader would not be able to determine that NCBA’s

actions were not funded by the beef checkoff and not spoken

on behalf of all ranchers. As an example of the confusion,

President Bush stated in his speech thanking NCBA: “Jan

Lyons, President of the National Cattlemen’s Beef

Association is with us. They have given me _ their

endorsement. I am honored to be endorsed by the Cattlemen

of the United States of America.” Speech Transcript (Aug. 31,

2004), at http: georgewbush.com FarmAndRanch Read.asp

x 1ID=3414.

NCBA also publicly advocates for policy positions that

violate the dissenters’ core beliefs. One of the Respondents’

primary objections to the mandatory beef checkoff is that its

promotions do not distinguish imported beef from domestic

beef, which Respondents believe is a better product. J.A. 35,

66, 190-91. The 2002 Farm Bill included a provision making

it mandatory to label food, including meat, as to its country of

origin. Pub. L. No. 107-171, § 10816, 116 Stat. 134, 533

(2002). One of the objectives of this Country of Origin

Labeling (COOL) provision was to inform consumers

whether the beef they buy comes from cattle raised,

slaughtered, and packaged in the United States. NCBA,

however, has actively opposed mandatory COOL. Jerry

Hagstrom, COOL Battle Far From Over, AgWeek, Dec. 8,

2003, available at http:’ www.grandforks.com/mld/grand

forksherald 7439869. htm. In 2004, at the urging of groups

such as NCBA. Congress delayed funding of COOL, a move

that outraged farmers and ranchers. Pub. L. No. 108-199,

$ 749, 118 Stat. 3, 37 (2004). As submitted by Senator Tim

Johnson to the Congressional Record:

Ann Veneman herself helped identify some of the

culprits who killed COOL. She fingered the NCBA,

the National Pork Producers Council and the United

Fresh Fruit and Vegetable Association as the groups

responsible for blocking its implementation. Yes,

the primary contractor for your checkoff dollars, an

outfit that may not even exist without your beef

bucks, the NCBA, stabbed you mght in the back.

Again.

150 Cong. Rec. $174-S175 (daily ed. Jan. 22, 2004).

The mandatory beef checkoff compels ranchers to

associate with the organizations that administer the beef

checkoff and the objectionable speech it generates in myriad

ways. This compulsion offends ranchers’ First Amendment

right to refrain from association with objectionable groups

and their messages. See Boy Scouts of Am. v. Dale, 530 U.S.

640, 648 (2000).

B. The Beef Act Serves the Interests of Packers

and Retailers and Not a Paramount

Governmental Interest, Making Packers and

Retailers the True Free Riders of the Checkoff.

“It is firmly established that a significant impairment of

First Amendment rights must survive exacting scrutiny.”

Elrod v. Burns, 427 U.S. 347, 362 (1976) (citing Buckley v.

Valeo, 424 U.S. 1, 64-65 (1976)). Encroachment of First

Amendment rights “cannot be justified upon a mere showifig

of a legitimate state interest.” Kusper v. Pontikes, 414 U.S.

51, 58 (1973). “The interest advanced must be paramount,

one of vital importance, and the burden is on the government

to show the existence of such an interest.” Elrod, 427 U.S. at

362.

In order to justify interfering with an individual's

association rights by compelling assessments to fund

objectionable speech, the government bears the burden of

showing an “overriding associational purpose which allows

any compelled subsidy for speech in the first place.” United

Foods, 533 U.S. at 413. In the labor context, the “overriding

associational purpose” that justifies compelling employees to

pay their share of collective bargaining activities is

Congress’s interest in furthering “industrial peace and

stabilized labor-management relations.” Ry. Employees’ Dept.

v. Hanson, 351 U.S. 225, 233-34 (1956); see also Abood, 431

U.S. at 219. The “overriding associational purpose” justifying

compelled payments to an integrated state bar association is

the state’s interest in ensuring educational and ethical

standards for attorneys that provide legal services to the

state’s citizens. Keller, 496 U.S. at 12, 16; Lathrop v.

Donohue, 367 U.S. 820, 843 (1961) (plurality).

The Court already has held that there is no “overriding

associational purpose” justifying compelled subsidies for the

promotion of agricultural commodities in the absence of a

greater collective regulatory scheme. United Foods, 533 U.S.

at 415. In contrast to Glickman v. Wileman Bros. & Elliott,

Inc.. 521 U.S. 457 (1997), which addressed the promotion

portion of a broader marketing order mandating the

collectivization of California tree fruit production to such an

extent that the industry was exempted from antitrust laws, the

Mushroom Act at issue in United Foods was a stand-alone

statutory promotion program. See United Foods, 533 U.S. at

415-16. Because there was no “law or necessity” justifying

the compelled association of mushroom growers in the first

place, the compelled subsidies for the mushroom checkoff

speech were declared unconstitutional. /d. at 413, 414-16.

Petitioners’ briefs omit this threshold inquiry. Like the

Mushroom Act, the Beef Act was enacted as a stand-alone

promotion program and is not part of a greater collectivized

statutory scheme. U.S. Pet. App. 11a, 47a. Accordingly, like

the Mushroom Act, because there is no justification for the

compelled association in the first instance, the compelled

assessments under the Beef Act are unconstitutional.

The only governmental interest asserted by the

Petitioners to justify the Beef Act's infringement of ranchers’

First Amendment rights is found in their discussion of the

intermediate standard of scrutiny applied to restrictions on

commercial speech. Petitioners assert that the Beef Act

advances a “substantial” government interest by “enhancing

‘the welfare of beef producers,’ stabilizing ‘the general

economy of the Nation,” and ‘ensur[ing] that the people of the

United States receive adequate nourishment.” Brief for the

Federal Petitioners (U.S. Br.) 47 (citing 7 U.S.C. § 2901(a)(3)

and (4)). These asserted interests do not satisfy the

intermediate standard of scrutiny used for analyzing

restrictions on commercial speech, see infra, let alone the

“exacting scrutiny” required for the Beef Act’s significant

impairment of ranchers’ essociation rights.

Congress has enacted multiple, competing checkoff

programs. The fact that pork competes against beef in the

marketplace and vice versa undermines any claim that the

government's interest in promoting one or the other is

substantial, and makes it impossible for any one checkoff

program to be found “of vital importance.” See infra at 24-25.

Moreover, while asserting that the governmental interest in

the mandatory beef checkoff and other checkoffs is to

“stabiliz[e] ‘the general economy,’” the government cannot

plausibly argue that it has a paramount interest in simply

promoting more consumption of all agricultural products

cevered by mandatory checkoffs, given USDA’s conflicting

interest in providing education to consumers on nutrition and

healthy eating, including the well-known Food Guide

Pyramid. See 69 Fed. Reg. 42,030 (July 13, 2004). For

example, while compelling hog farmers to pay some $50

million per year to promote pork and pork products, USDA

also urges consumers to “Limit your intake of high-fat

processed meats such as bacon, sausages, salami, bologna,

and other cold cuts.” See USDA, Nutrition and Your Health:

Dietary Guidelines for Americans (5th ed. 2000), available at

http://www. health. gov/dietary guidelines/dga2000/document/c

hoose.htm. As set forth in more detail below, rather than

promoting a governmental interest, the mandatory checkoffs

in reality promote the interests of the private participants in

each industry. See infra at 23-24.

Petitioners assert that the government has a “vital” policy

interest in avoiding free riders, thus necessitating a mandatory

beef checkoff. U.S. Br. 48 (citing Lehnert v. Ferris Faculty

Ass'n, 500 U.S. 507, 519-21 (1991)). This argument

misapprehends the nature of the checkoffs and the meaning of

the term “free riders,’ which is applicable only in a

constitutionally justified collective enterprise. The concern

about free riders was articulated by the Court in the context of

upholding agency shop agreements in which the union ts the

exclusive collective bargaining representative for union and

non-union members. Hanson, 351 U.S. at 233-35; Lehnert,

500 U.S. at 519. The Court upheld the requirement that

nonunion members be compelled to pay for costs related to

unions’ collective bargaining duties, since the unions were

obligated by statute to represent the non-members, and non-

members would benefit in equal share as members.

Accordingly, to prohibit the non-members from benefiting as

free riders from the unions’ statutorily imposed bargaining

obligations in agency shop arrangements, non-members could

be required to pay for certain costs over their objections. See

Lehnert, 500 U.S. at 520-21 (“nonunion workers ought not to

be allowed to benefit from the terms of employment secured

by union efforts without paying for those services...”); Ellis

v. Brotherhood of Ry., 466 U.S. 435, 452 (1984) (“the free

rider Congress had in mind was the employee the union was

required to represent and from whom it could not withhold

benefits obtained for its members”).

The free rider concern also arises for heavily regulated

industries, as was the case in Glickman, where individuals

could “take advantage of their monopoly power resulting

from regulation of price and supply without paying for

whatever commercial benefits such free riders receive at the

hands of the government.” United Foods, Inc. v. United

States. 197 F.3d 221, 224 (6th Cir. 1999). The concern about

free riders thus is applicable only where there is collective

activity that itself is justified by a paramount government

interest. It has no applicability here, where the beef industry 1s

not collectivized, and the participants in that industry are free

actors, not free riders.

Moreover, that some individuals who choose not to

participate in a voluntary checkoff may benefit from the

advertising of those who do, does not provide sufficient

justification for compelling all farmers and ranchers to

contribute and be forced into objectionable association.

“[P]rivate speech often furthers the interests of nonspeakers,

and that does not alone empower the state to compel the

speech to be paid for.” Lehnert, 500 U.S. at 556 (Scalia, J.,

concurring in part and dissenting in part). Indeed, the persons

who benefit most from mandatory checkoffs are not the

farmers and ranchers who pay for them, but the processors

and retailers, whose products are being marketed at farmers’

and ranchers’ expense. U.S. Pet. App. 48a.

Il. THE BEEF CHECKOFF VIOLATES

RANCHERS’ FIRST AMENDMENT RIGHT OF

FREEDOM OF SPEECH.

A. Checkoff-Funded Speech Is_ Inextricably

Intertwined With Expressly Ideological And

Politically Partisan Speech.

The Court has unequivocally concluded that commercial

speech 1s entitled to First Amendment protection. Virginia Bd.

of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 762 (1976). The Court settled on a three-part test

providing for “intermediate scrutiny” of restrictions on

commercial speech, rather than the highest level of scrutiny,

in its decision in Central Hudson Gas & Elec. Corp. v. Public

Ser. Comm'n, 447 U.S. 557, 566 (1980). Once thought to be

“commonsense,” Ohralik v. Ohio State Bar Ass'n, 436 U.S.

447, 455-56 (1978), the definition of “commercial speech” for

purposes of determining which level of scrutiny applies, has

proven to be more elusive as communication and marketing

tools become more sophisticated. See, e.g., Nike, Inc. v.

Kasky, 539 U.S. 654, 676-79 (2003) (Breyer, J. dissenting);

United Foods, 533 U.S. at 409-10.

Although the Court in Central Hudson described

commercial speech as “expression related solely to the

economic interests of the speaker and its audience” (447 U.S.

at 561), the Court has acknowledged the “difficulty of

drawing bright lines that will clearly cabin commercial speech

in a distinct category.” Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 419 (1993) (noting that advertising publications

“share important characteristics with the publications

...classifie[d] as ‘newspapers.’”). It is also established that the

mere fact that a publication contains an advertisement or a

reference to a specific product does not convert that speech

into commercial speech. See Bolger v. Youngs Drug Prod.

Corp., 463 U.S. 60, 66-67 (1983) (citing New York Times Co.

v. Sullivan, 376 U.S. 254, 265-66 (1964)). In analyzing what

level of scrutiny to apply to a state statute that compelled

professional fundraisers to disclose certain information to

potential donors, the Court explained:

[E]ven assuming, without deciding, that such

speech in the abstract is indeed merely

“commercial,” we do not believe that the speech

retains its commercial character when it 1s

inextricably intertwined with otherwise fully

protected speech. Our lodestars in deciding what

level of scrutiny to apply to a compelled statement

must be the nature of the speech taken as a whole

and the effect of the compelled statement thereon. . .

. Thus, where, as here, the component parts of a

single speech are inextricably intertwined, we

cannot parcel out the speech, applying one test to

one phrase and another test to another phrase. Such

an endeavor would be both artificial and

impractical. Therefore, we apply our test for fully

protected expression.

Riley v. Nat'l Fed'n. of the Blind, 487 U.S. 781, 796 (1988).

Taking the nature of the speech as a whole, speech

funded by mandatory checkoffs does not fall into the narrow

category of speech that is solely commercial. Set against the

backdrop of the political and philosophical divide between

those who advocate for further industrialization of agriculture

and those who are attempting to preserve family farming and

rural communities, the speech supported by mandatory

checkoffs can only be seen as economic, political, and

ideological.'* As this Court noted in Abood, “{OJur cases

have never suggested that expression about philosophical,

social, artistic, economic, literary, or ethical matters—to take

a nonexhaustive list of labels—is not entitled to full First

Amendment protection.” 431 U.S. at 231.

By paying the mandatory checkoff, family farmers and

ranchers are compelled to subsidize speech that supports a

system of agriculture they believe is driving them out of

existence. See, e.g., U.S. Pet. App. 48a; MPPA I, 229 F. Supp.

2d at 790-91. Through the checkoff, farmers and ranchers are

forced to subsidize the marketing of products they neither sell

nor earn a profit from. Ranchers sell cattle, not beef. Hog

farmers sell hogs, not pork. Ranchers’ share of the retail beef

dollar declined from nearly 70% in the 1970s to below 50%

in 1996. Kenneth H. Mathews, Jr., U. S. Beef Industry: Cattle

Cycles, Price Spreads, and Packer Concentration, 18-19

(Apr. 1999), available at http://www.ers.usda.gov/publicati

ons/tb1874/tb1874.pdf. Similarly, hog farmers’ share of the

retail pork dollar declined from 42.5% to 30.1% between

1996 and 2001. MPPA I, 229 F. Supp. 2d at 776. Family

farmers and ranchers thus understandably believe that their

checkoff dollars are enriching retailers and processors, to

their detriment.

‘

The records of the pending legal challenges to mandatory

checkoffs demonstrate that the objecting farmers and ranchers strongly

disagree with the speech they are compelled to fund. See, e.g., U.S. Pet.

App. lla, 48a; MPPA |, 229 F. Supp. 2d at 790; Cochran v. Veneman, 359

F.3d 263, 266-67 (3d Cir. 2004) petition for cert. filed (U.S. Sept. 30,

2004) (No. 04-446). This distinguishes this case and other pending cases

from Glickman, in which the Court presumed that the producers agreed

with the advertising message. 521 U.S. at 469-70. As well, the finding by

the district court that objecting hog farmers have “sincere philosophical,

political and commercial disagreements” to pork checkoff-funded speech

(see MPPA |, 229 F. Supp. 2d at 790), obviates the Court's further

assumption in Glickman that producers were not compelled to finance

“political or ideological views.” 521 U.S. at 469-70.

Moreover, mandatory checkoffs compel farmers and

ranchers to subsidize the promotion of products raised using

methods with which they disagree. For example, the

challengers to the dairy checkoff operate a small dairy,

employing traditional methods of dairy farming. They

emphatically believe that their method of farming—which

allows cows more room to roam and graze than industrial

methods allow, and which eschews the use of the recombinant

Bovine Growth Hormone (rBGH)—tesults in healthier cows,

a cleaner environment, and superior milk. Cochran, 359 F.3d

at 266-67. Family hog farmers similarly object to funding the

generic promotion of pork from hogs that are raised

employing methods commonly used in factory farms, such as

continuous feeding of antimicrobials. MPPA 1, 229 F. Supp.

2d at 777. Some objecting ranchers raise grass-fed cattle

without the use of artificial hormones, subtherapeutic

antibiotics, chemical additives, extra water, and irradiation.

Charter v. USDA, 230 F. Supp. 2d 1121, 1122 (D. Mont.

2002). They have strongly held views regarding ranching

methods, nutrition, and food safety which are often

diametrically opposed to the products promoted by the beef

checkoff. See, e.g, NCBA Press Release, Beef Checkoff

Educates Consumers About Irradiated Beef (May 11, 2004),

available at http://www.beef.org/dsp/dsp_content.cfm?locat

ionld=45&contentT ypeld=2&contentld=2621. The generic

promotion of commodities lumps those raised by independent

family farmers using what they believe are healthy and

humane practices with those raised in factory farms—the

same mega-farms that are driving family farmers out of

existence.

'? Speech funded under the “research” and “consumer information”

portions of the checkoffs often blatantly supports industrialized

agriculture. For example, a primary focus of research funded by the pork

checkoff is in the area of “Antimicrobial Resistance and Alternatives

Research,” meaning the continuous feeding of subtherapeutic levels of

antibiotics to hogs to promote growth and prevent disease—a practice

As agriculture rapidly becomes vertically integrated,

packers control more livestock through captive supply

arrangements, and the number of packers dwindles while their

size and market power swells, generic promotion that fails to

distinguish the unique qualities of-family farm-raised

commodities continues to harm family farmers. In the

struggle to stay on their land with ever-shrinking farm

income, * the money farmers and ranchers are forced to pay

to fund generic promotion has a direct impact on their daily

lives. See MPPA 1, 229 F. Supp. 2d at 775-76.

Even more galling to farmers is “branded advertising,”

which uses checkoff dollars to promote the products of

particular packers and retailers. See, eg. id. at 776

(promoting Smithfield and Hormel pork); see also,

http://www.beefmark.com (promoting Smithfield and Tyson

beef products, among others); http://www.dairycheckoff.com

/check/hl0904.asp (promoting Safeway). Because packers

increasingly own livestock, checkoff-funded branded

advertising forces farmers and ranchers to pay for the

advertising of their direct competitors. The packers whose

advertising budgets are being subsidized by farmers are also

direct competitors of farmers who process and market their

own products. See MPPA I, 229 F. Supp. 2d at 776.

The speech funded by the mandatory checkoffs—whether

it is generic advertising, “branded” advertising, publications

many independent family farmers scorn. See MPPA |, 229 F. Supp. 2d at

777. Pork checkoff challenger James Joens opposes checkoff-funded

“education” about the same practices:

I raise my hogs using humane methods; they are not confined

in pens their entire lives, as they are in many factory hog farms.

I object to my checkoff dollars being used to publish

information that helps cover up the abuses of those large

confinement facilities.

MPPA 1, 229 F. Supp. 2d at 776.

'* Average operator earnings from farming in 2003 were $3,991. See

http://www.ers.usda.gov/Briefing FarmIncome/Data/Hh_tS htm.

pronouncing the results of “research,” or “consumer

information”—certainly encompasses more than just

“expression related solely to the economic interests of the

speaker and its audience.” While the speaker in beef-checkoff

funded ads is “America’s Beef Producers,” the speech relates

less to the economic interests of ranchers than it does the

economic interests of packers and retailers. Moreover, the

commercial nature of checkoff-funded speech is interwoven

with its underlying ideological, philosophical, and political

nature. Speech that represents and supports a system of

agriculture that is anathema to the objecting farmers’ core

economic, ideological, and political beliefs cannot be said to

be merely “commercial.”'* Taken as a whole, the compelled

funding of speech through the mandatory checkoffs must be

given the highest level of scrutiny under the First

Amendment. The compulsion to fund messages that promote

a system of agriculture that is repugnant to farmers’ and

ranchers’ economic, philosophical, and political interests

must also be repugnant to the Constitution.

B. The Beef Checkoff, Paid Solely By Ranchers To

Benefit The Beef Industry, Fails The Central

Hudson Test.

Even if the speech at issue is deemed commercial,

Central Hudson provides that the government may regulate it

only if: (1) “the asserted government interest is substantial,”

(2) the regulation “directly advances the governmental

interest asserted,” and (3) the regulation “is not more

extensive than is necessary to serve that interest.” 447 U.S. at

566. Petitioners have failed to meet their burden under

Central Hudson, which “is not satisfied by mere speculation

'* Although the Eighth Circuit concluded that the test for a restriction

on commercial speech set forth in Central Hudson is applicable to the

claims at issue in this case, it did so without analysis of the nature of the

speech, and ultimately correctly applied United Foods. U.S. Pet. App.

24a-28a.

or conjecture.” Edenfield v. Fane, 507 U.S. 761, 770-71

(1993).

1. The government’s interest is not

substantial.

Petitioners maintain that the beef checkoff advances a

substantial governmental interest by “enhancing ‘the welfare

of beef producers’ and other members of the $50 billion beef

industry,” and “stabilizing ‘the general economy of the

Nation.’” U.S. Br. 47, citing 7 U.S.C. § 2901(a)(3) and (4).

Petitioners also cite United States v. Frame, 885 F.2d 1119,

1134 (3d Cir. 1989), cert denied, 493 U.S. 1094 (1990)

(O’Connor, J., not participating), for the proposition that the

beef checkoff prevented the further decay of the beef

industry. U.S. Br. 39-40. Petitioners are wrong for a number

of reasons. First, the Third Circuit's recent decision in

Cochran, a dairy checkoff challenge, limited its prior holding

in Frame on this very issue:

As in Frame, the Government here argues that it has

a sufficient interest in increasing the demand for an

agricultural product. . . . We previously have

emphasized, however, that the Court’s subsequent

holding in United Foods that clarified and limited

the teachings of Glickman, cut away the

underpinning of this court’s analysis in Frame.

United Foods makes clear that the government may

not compel individuals to support an advertising

program for the sole purpose of increasing demand

for that product. . . . As Judge Sloviter suggested in

her dissent in Frame, promotional programs such as

the Dairy Act seem to really be special interest

legislation on behalf of the industry's interest more

so than the government's.

359 F.3d at 279.

Second, it has long been accepted that checkoff programs

were created as “self-help” programs tc serve private industry

interests, rather than a governmental interest. See id.; J.A.

101-02; MPPA Il, 348 F.3d at 161; see also, Glickman, 521

U.S. at 495 (Souter, J., dissenting) (“the legislative history

shows that from time to time Congress has simply amended

the [Agricultural Marketing Agreement Act of 1937] to add

particular commodities to the list at the request of interest

producers or handlers, without ever explaining why

compelled advertising programs were necessary for the

specific produce chosen and not others.”).

Third, in discussing the importance of the beef industry

to the American economy, Petitioners fail to mention that the

government has other compelled speech programs that

compete with beef. For example, the pork checkoff program

has identified beef as being in competition with pork.'® The

lamb checkoff program compares the nutritional value of

lamb to other meats, including beef and pork. American

Lamb Board, Nutrition: Lamb v. Other Meats, available at

http: /americanlambboard.org/?page=site/text&nav_id=d04de

bdf9e79843987ec6352c78be6d2. CBB, through beef checkoff

promotions, bragged that in 1999, for the first time in 20

years (in 15 of which the mandatory beef checkoff existed),

beef consumption increased, “despite stiff competition from

pork and poultry.” CBB Press Release, Beef Demand

Stabilizes After 20-Year Slide (Jan. 26, 2000), available at

http://www.beefboard.org/dsp/dsp_content.cfm?locationld=1

071&contentTypeld=2&contentld=415. In addition to

enacting numerous competing checkoff programs, Congress

'* NPB Press Release (June 18, 2001), available at http://www.

porkboard.org News NewsEdit.asp?NewsID=101 (“With pork’s increase

in popularity, the industry continues to share the message that pork can

compete with beef.”); NPB Press Release (April 16, 2002), available at

http: 'www.porkboard.org/News/NewsEdit.asp?NewsID=266 (“But with

abundant supplies [of pork] and low prices for beef and ,oultry, there is

bound to be some substitution.”); NPB Press Release, (June 7, 2001),

available at http://www.porkboard.org/News/NewsEdit.asp?NewsID=95

(“At the consumer level, pork competes with beef.”).

also enacted the Commodity Promotion, Research and

Information Act of 1996 that allows agricultural industry

groups to petition the Secretary of Agriculture to implement

new checkoff programs. 7 U.S.C. §§ 7411-7425. As the

district court aptly queried: “After all, is the ‘government

message’ that consumers should eat no other product [other

than beef] or at least reduce the consumption of other

products such as pork, chicken, fish, or soy meal?” U.S. Pet.

App. 56a.

In Greater New Orleans Broad. Ass'n v. United States,

the Court held that a federal restriction on advertising related

to casino gambling did not satisfy Central Hudson's

substantial governmental interest requirement in part because ~

Congress also sanctioned some forms of gambling. 527 U.S.

173, 186-87 (1999). The Court held that it “cannot ignore

Congress’ unwillingness to adopt a single national policy that

consistently endorses either interest asserted by the Solicitor

General.” /d. By authorizing multiple, competing checkoffs,

Congress is not promoting the welfare of cattle ranchers;

rather, it is promoting the interests of competing agricultural

industry groups that are on the gravy train of checkoff

funding. That interest does not justify compelled assessments’

impingement on ranchers’ First Amendment rights.

2. The beef checkoff does not directly

advance any asserted government interest.

Even if a substantial government interest can somehow

be derived amongst the multitude of checkoffs, the beef

checkoff does not directly advance the asserted government

interest to “enhance the welfare of beef producers.” U.S. Br.

39-40. Presumably by this Congress meant American cattle

ranchers. See 7 U.S.C. § 2901(a)(2). One of Respondents’

primary objections to the beef checkoff is that it treats all beef

the same, including imported beef, to the detriment of

domestic ranchers. J.A. 35, 222-23. By doing so, the beef

checkoff fails to directly advance the asserted government

interest of enhancing the welfare of Ar-erican ranchers.

Furthermore, the record in this case contains no evidence

suggesting that the beef checkoff has a beneficial effect on the

live prices ranchers receive when they market cattle (and are

forced to pay the mandatory beef checkoff). Instead, the

analysis cited by Petitioners is limited to changes in demand

for beef. U.S. Br. 40. Ranchers sell cattle, not beef. Packers

and retailers sell beef. If the beef checkoff has helped anyone,

it is retailers and processors—who do not pay the beef

checkoff. See U.S. Pet. App. 48a. The checkoff's failure to

enhance the welfare of American cattle ranchers—indeed, its

inherent inability to do so—precludes any finding that the

compelled speech directly advances the government's

asserted interest.

3. The beef checkoff is far more extensive

than necessary to serve any asserted

governmental interest.

By compelling objectionable speech, the beef checkoff

burdens ranchers’ First Amendment rights more than

necessary to advance the asserted governmental interest. To

be valid under Central Hudson, compelled speech must be the

last means utilized to serve the asserted government interest.

See Thompson v. W. Med. States Ctr., 535 U.S. 357, 373

(2001) (“If the First Amendment means anything, it means

that regulating speech must be a last—not first—resort. Yet

here it seems to have been the first strategy the Government

thought to try.”). The government has available to it a vast

array of strategies it can use and has used to promote the beef

industry, short of violating ranchers’ First Amendment rights.

If the government’s interest in the welfare of cattle

ranchers were substantial, and if the government truly

believed that generic promotion programs directly advance

that interest, the government could use funds from general

revenues to fund the same projects, as the Fifth Circuit

recently noted in a decision striking down a state alligator

checkoff.'’ See Pelts & Skins, LLC v. Landreneau, 365 F.3d

423, 434 n.21 (Sth Cir. 2004) petition for cert. filed (U.S.

June 30, 2004) (No. 04-23). (“Louisiana does not need to

compel alligator harvesters to support generic marketing, but

could simply fund generic marketing from its general tax

revenues.”). Indeed, the government has funded projects to

“enhance the welfare of beef producers” in the past and has

proposed doing so in the current appropriations cycle.'* For

example, the Livestock Compensation Program provided

government payments to farmers and ranchers based on losses

sustained due to natural disasters. 67 Fed. Reg. 63,070

(Oct. 10, 2002).'° In addition, the government’s response to

Bovine Spongiform Encephalopathy (BSE), or Mad Cow

disease, has come from USDA taxpayer-funded programs and

is not dependent on the existence of the beef checkoff.”° In

'’ The Court has recognized that constitutional interests outweigh any

governmental interest in pecuniary savings. See Lassiter v. Dep't of Social

Services, 452 U.S. 18, 28 (1981) (explaining that although North

Carolina's interest in pecuniary savings was legitimate, it could not

overcome the Due Process rights of its citizens).

'* In order to increase demand for beef, USDA’s Agricultural

Marketing Service has a Commodity Procurement Program that purchases

beef. J.A. 128; 7 U.S.C. § 612c. Also, states have enacted agricultural

commodity purchase programs. See Neil D. Hamilton, Putting a Face on

Our Food: How State and Local Food Policies Can Promote the New

Agriculture, 7 Drake J. Agric. L. 404, 424-27 (2002).

'? The Small Hog Operation Payment program likewise provided

small hog farmers payments based on past production in response to

historically low hog prices in 1998 and i999. 7 C.F.R. pt. 716. For dairy

farmers, USDA’s Milk Income Loss Contract program compensates dairy

farmers when domestic milk prices fall below a specified level. 7 U.S.C.

§ 7982.

2° For 2005, USDA has budgeted $60 million for BSE-related

activities. See http://www.usda.gov/agency/obpa/Budget-Summary/2005

/19.BSE.htm. The House and Senate also have both passed bills for

additional BSE-related programs in the pending agricultural

appropriations bills. See H.R. Rep. No. 584, 108th Cong. at 43, 51, 85

(2004); S. Rep. No. 340, 108th Cong. at 65, 81, 148 (2004).

any event, consumers are not protected by beef checkoff

speech; they are protected by food and feed safety regulations

that will prevent BSE. See, e.v., 21 C.F.R. § 189.5; 69 Fed.

Reg. 1,694 (Jan. 12, 2004). Also, NCBA opposes COOL, the

law that would inform consumers which country beef comes

from so they can avoid buying beef from cattle raised in

countries where BSE has been detected. Petitioners’ cries that

the beef industry will collapse without the mandatory

checkoff ring hollow in light of the facts.

Petitioners argue that the mandatory beef checkoff

“solves the collective action problem by eliminating the

possibility of free riding.” U.S. Br. 40. In addition to the

arguments at pages 15-17, supra, refuting Petitioners’

unsupported free rider theory, there are other reasons why

Petitioners’ free rider argument is misp,aced. Congress has

demonstrated that the purported free rider problem does not

exist in this context. For example, Congress does not always

require every producer of a commodity to pay mandatory

assessments for the commodity’s promotion, research, and

consumer information program. In 2002, Congress exempted

all certified organic farmers, including organic cattle

ranchers, from paying mandatory checkoff assessments.

7 U.S.C. § 7401(e). And some checkoff programs impose

mandatory assessments only on producers and processors

with a certain minimum annual production or acreage.”' Oral

See, e.g., Dairy Act, 7 U.S.C. § 4502(1) (exempting dairy producers

from outside the 48 contiguous states); Fluid Milk Promotion Act,

7U.S.C. §6402(4) (exempting fluid milk processors who process

3 million pounds or less per month); Popcorn Act, 7 U.S.C. § 7482(11)

(exempting processors who process 4 million pounds of popcorn or less

per year); Honey Act, 7 U.S.C. § 4606(e)(4) (exempting producers who

market less than 6,000 pounds of honey per year); Potato Act, 7 U.S.C.

§ 2612(e) (exempting farmers who grow less than 5 acres of potatoes);

Watermelon Act, 7 U.S.C. § 4902(5) (exempting farmers who grow less

than 10 acres of watermelons); and Blueberry Order, 7 C.F.R. § 1218.53

(exempting growers who produce less than 2,000 pounds of cultivated

blueberries per year).

Argument Tr., United States v. United Foods, Inc., No. 00-

276, 16, ll. 3-7 (Apr. 17, 2001) (counsel for United States)

(conceding that the mushroom checkoff is not imposed "on

all those who benefit from the speech.”). This means that, for

each of these checkoff programs, there are “free riders,” in

Petitioners’ parlance.

By exempting certain categories of producers and

processors from compelied financial support of promotion

programs—programs whose benefit, if any, presumably

inures to the non-paying producers and processors of the

commodity as well as the paying contributors—Congress has

shown that avoiding a free rider problem is not of paramount

concern under the checkoff programs. Specifically for this

case, Congress’s willingness to exempt organic ranchers from

paying the beef checkoff reveals its belief that the program’s

intended benefits are attainable without the financial support

of all ranchers. If not all are needed, Petitioners’ general free

rider argument thus falls flat and the mandatory beef checkoff

cannot meet the Court’s test that any regulation be “narrowly

tailored to achieve the desired objective.” Lorillard Tobacco

Co. v. Reilly, 533 U.S. 525, 556 (2001). The true free rider

problem under the beef checkoff is that only one segment of

the beef industry—the cattle rancher—is forced to pay the

checkoff to support a program that is intended to “strengthen

the position of the beef industry in the marketplace.” 7 U.S.C.

§ 2901(b); see also U.S. Br. 41 (“[The Beef Act] requires

only that cattle producers contribute financially to generic

advertising (and other activities) designed to benefit the beef

industry as a whole by promoting the sale of the product that

the industry exists to market.”). Since the burden of the beef

checkoff falls only on ranchers, while the benefits accrue

largely, if not entirely, to other participants in the industry—

the marketer, meatpacker, food retailer—Petitioners cannot

claim that the Beef Act is “not more extensive than is

necessary.”

CONCLUSION

For the foregoing reasons and the reasons set forth in

Respondents’ Brief, the judgment below should be affirmed.

Respectfully submitted,

Susan E. Stokes

Counsel of Record

David R. Moeller

Karen R. Krub

FARMERS’ LEGAL ACTION GROUP, INC.

360 North Robert Street, Suite 500

Saint Paul, MN 55101

(651) 223-5400

Dated: October 15, 2004°

Counsel] for Amici were assisted by Farmers’ Legal Action Group

Staff Attorney Jess Anna Speier.

A-|l

APPENDIX

List of Amici

American Agriculture Movement

American Corn Growers Association

American Raw Milk Producers Pricing

Association

Citizens Action Coalition of Indiana

Dakota Resource Council

Dakota Rural Action

Empire State Family Farm Alliance

Family Farm Defenders

Farm Wives United

. Federation of Southern Cooperatives

. Fort Berthold Land and Livestock Association

. Idaho Rural Council

. Illinois Farmers Union

. Illinois Stewardship Alliance

. Indiana National Farmers Organization

. Intertribal Agriculture Council

. lowa Citizens for Community Improvement

. Iowa Farmers Union

. Kansas Cattlemen’s Association

40.

41.

. Kansas Rural Center

. Land Stewardship Project

. Minnesota Farmers Union

. Minnesota National Farmers Organization

. Missouri Farmers Union

. Missouri Rural Crisis Center

. Missouri Stockgrowers Association

. National Catholic Rural Life Conference

National Family Farm Coalition

. National Farmers Organization

. National Farmers Union

. Nebraska Farmers Union

. Northern Plains Resource Council

Northern Plains Sustainable Agriculture Society

Oregon Farmers Union

Pennsylvania Farmers Union

Powder River Basin Resource Council

. Rocky Mountain Farmers Union

. Rosebud Indian Land and Grazing Association

. Rural Advancement Foundation International-

USA

Rural Coalition

Rural Vermont

42.

. Southern Sustainable Agriculture Working

South Dakota Stockgrowers Association

Group

Sustainable Agriculture Coalition

. Western Colorado Congress

. Western Sustainable Agriculture Working

Group

. Wisconsin Farmers Union

. Women, Food and Agriculture Network

Yahara Food Farm Coalition

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.