Charter v. Usda ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANNE CHARTER; STEVE CHARTER, 
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant-Appellee,
CHARLES M. REIN; JAMES E.
COURTNEY; RANDALL P. SMITH; ED
LORD; GEORGE HAMMOND; JOHN
SWANZ; KEITH BALES; KEYSTONE
RANCHES, INC.; SIMPLOT LIVESTOCK
CO.; AGRI BEEF COMPANY; JOHN R. No. 02-36140
WILSON; DAVID TRUE; LYLE GRAY,
Defendant-Intervenors-
Appellees,
 D.C. No.
CV-00-00198-RCB
v. ORDER
DARRELL ABBOTT; DAVE J. ABLE;
LOUISE AHART; IRV ALDERSON; JESS
ALGER; JUSTIN BAISCH; SHANA
BAISCH; WILLIAM P. BANDEL;
JOSEPH J. BARRETT; DOMINIC
BEGGER; JOHN BENSON; EARL
BERLIER; WADE BERUER; REG
BILLING; ROBERT BOMHOFF; JAMES
H. BOWERS; DAVID E. BOWMAN;
CEABRIAN RANCH, INC; MIKE
CALLICRATE; DON H. CHAFEE; BILL
CHRISTISON; LEE D. CLARK, JR.;

7193
7194 CHARTER v. USDA
LEAH R. COLE; C. M. COFFEE; 
JERRY COSSITT; AUDREY COX;
CONRAD L. COX; GERAL L. COX;
ROBERT COX; ARTHUR DANIEL;
BRETT DEBRUYCKER; KAY
DEBRUYCKER; LLOYD DEBRUYCKER;
DAVID DEECHANT; GRANT DOBBS;
MABEL E. DOBBS; LES DUFFNER;
JOHN DYER; RICHARD EIGUREN
FAMILY LIMITED PARTNERSHIP;
RONALD FERSTER; PEGGY FERSTER;
NAOMI FINK; MARK FIX; ALAN
FOLDA; GLENN FOLLMER; JOHN
GAYNOR; RICK GOLDER; RICHARD
GOSMAN; BEN W. GREEN; BIZZ
GREEN; GRANT GREIMAN; BARR
GUSTAFSON; DOUG HARRISON; 
GLADYS HARRISON; BERT
HAMMOND; ARLENEE HAMMOND;
JOSEPH HANSER; JOGN M.
HEYNEMAN; GORDON O. HOBERG;
STEPHEN D. HORNADY; BILL
HUNTSMAN; EVELYN W. HUNTSMAN;
HARRY HUMBERT; LEVI JENKINS;
CARL R. JOHNSON; FRED H.
JOHNSON; VERA-BETH JOHNSON;
JOHN E. KELLY; KANARA RANCH
CO.; NOEL KEOGH; ART KIRBY;
JOHN E. KUBESH; PETER J. KUHR;
JOSEPH T. KUROWSKI; WILLIAM R.
MCKAY; GARY DEAN MALONE;
WALT MANUEL; JUDIE MANUEL;

CHARTER v. USDA 7195
DENNIS MCDONALD; DONALD C. 
MCELLIGOTT; DOUGLAS S. MCRAE;
WILLIAM D. MCRAE; JERRY
MOBLEY; MALCOLM MOORE; ED C.
MOTT; MUNRION LIVESTOCK, INC.;
DAVID NELSON; DONALD NELSON;
JAMIE D. OBERLING; JIM PATRICK;
MARGARETTA PATRICK; ELLEN L.
PFISTER; RONALD E. POPEKLA;
ROBERT G. POWELL; PRAIRIE ELK
TRUST; ELMER QUANBECK; LYLE
QUICK; LINCOLN REINHILLER; LINDA
RAUSER; ELWOOD RAVE; WILLIAM
H. RETTIG; WAYNE ROLF; MELISSA
ROLF; ROSSETTER LIMITED
PARTNERSHIP; RUSSELL SALISBURY; 
MICHAEL L. SCHULTZ; JACK
SEYMOUR; DAVID SHIPMAN; HELEN
J. SHIPMAN; JERRY SKINNER; LESTER
SLUGGETT; CAROL SLUGGETT;
MICHAEL SMITH; ELAINE SMITH;
PAUL B. SMITH; JEAN K.
SPANNAGEL; JAMES STAMPFEL;
GILLES STOCKTON; CLAIR K.
STREETER; NEIL STROZZI; GLEN M.
SYLVESTER; MATT THIELEN; JAY
TOPE; MARJORIES TOWNSEND;
ROBERT L. TRAINER; HUGO TURECK;
JUDY TURECK; JOSEPH VERLANIC;
HAROLD E. WALLER; JOHNNA LEE
WILLIAMS; BRETT WINDERL;

7196 CHARTER v. USDA
MONIKA WINDERL; CHARLER 
YARGER; ALTERNATIVE ENERGY
RESOURCES ORGANIZATION;
INTERTRIBAL ARGRICULTURE
COUNCIL; DAKOTA RESOURCE
COUNCIL; NORTH DAKOTA
FARMERS FOR PROFITABLE
AGRICULTURE; NORTHERN PLAINS 
RESOURCE COUNCIL; POWDER RIVER
BASIN RESOURCE COUNCIL; ASTRO
SALES INTERNATIONAL, INC.;
AUSTRAL FOODS, INC.; THE TUPMAN
THURLOW CO., INC.,
Plaintiff-Intervenors-
Appellants.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted March 31, 2004
Vacated May 27, 2004
Resubmitted June 16, 2005
Filed June 16, 2005
Before: William C. Canby, Jr., Kim McLane Wardlaw, and
Ronald M. Gould, Circuit Judges.
COUNSEL
Kelly J. Varnes, Hendrickson, Everson, Noennig & Wood-
ward, P.C., Billings, Montana; Erik S. Jaffe, Erik S. Jaffe,
P.C., Washington, D.C.; and Renee L. Giachino and Reid
CHARTER v. USDA 7197
Alan Cox, Center for Individual Freedom, Alexandria, Vir-
ginia, for the plaintiffs-appellants.
Robert D. McCallum, Jr., Assistant Attorney General; Wil-
liam M. Mercer, United States Attorney; and Douglas N. Let-
ter and Matthew M. Collette, Attorneys, Appellate Staff Civil
Division, Washington, D.C., for the defendant-appellee.
Richard T. Rossier and Alex Menendez, McLeod, Watkinson
& Miller, Washington, D.C., for the defendant-intervenors-
appellees.
Patricia D. Peterman and James A. Patten, Patten, Peterman,
Bekkendahl & Green, PLLC, Billings, Montana, for the
plaintiff-intervenors-appellants.
ORDER
This is a challenge to the constitutionality of the Beef Pro-
motion and Research Act of 1985 (“the Act”), 7 U.S.C.
§§ 2901-11, and the Beef Promotion and Research Order pro-
mulgated thereunder, 7 C.F.R. §§ 1260.101-1260.640. The
district court entered judgment in favor of the United States
Department of Agriculture, holding that the speech at issue is
government speech and thus the Act does not violate either
the appellants’ free speech or association rights. Charter v.
USDA, 230 F. Supp. 2d 1121 (D. Mont. 2002). We heard
argument and submitted the appeal for decision on March 31,
2004. When the Supreme Court granted certiorari in Johanns
v. Livestock Marketing Ass’n, ___ S.Ct. ___, 2005 WL
1200576 (U.S. May 23, 2005), we vacated submission pend-
ing the outcome in Johanns because the parties here chal-
lenged the Act on grounds identical to those asserted in
Johanns. We now order the appeal resubmitted for decision.
In Johanns, the Supreme Court, like the district court here,
first held that the speech at issue is “from beginning to end the
7198 CHARTER v. USDA
message established by the Federal Government,” i.e., the
Government’s own speech. Id. at *6. Further, because the
beef “checkoff” program promulgated under the Act funds the
Government’s own speech, the Court held that the Act is not
susceptible to a facial First Amendment compelled-subsidy
challenge. Id. at *6-*8. The Court nevertheless stated, without
expressing a view on the point, that “if it were established . . .
that individual beef advertisements were attributed to respon-
dents,” such facts might form the basis for an “as applied”
challenge. Id. at *8. The theory would be one of compelled
speech, i.e., that because the speech is attributed to the indi-
vidual respondents, the government unconstitutionally uses
their endorsement to promote a message with which they do
not agree. Id. Because the Johanns trial record was “alto-
gether silent” on whether the individual respondents would be
associated with speech labeled as coming from “America’s
Beef Producers,” the Court held that “on the record before us
an as-applied First Amendment challenge to the individual
advertisements affords no basis on which to sustain the Eighth
Circuit’s judgment [in favor of respondents], even in part.” Id.
Unlike in Johanns, the record in this case is not “altogether
silent” on whether the individual appellants who are beef pro-
ducers would be associated with the speech to which they
object. For example, Jeanne Charter, one of the appellants,
declared in an affidavit:
The checkoff [program] results in our being associ-
ated against our will with positions both political and
economic, from the National Cattlemen’s Beef Asso-
ciation (NCBA), the primary checkoff contractor.
The NCBA routinely, before Congress, and in other
public ways and in press announcements, states that
it is the trade organization and marketing organiza-
tion of America’s one million cattle producers. We
are not members of the NCBA, yet as cattle produc-
ers, we are associated with their messages. We are,
likewise, associated with Montana Beef Council
CHARTER v. USDA 7199
views endorsing highly processed beef products and
disparaging natural beef as a waste of time. We
believe such promotion devalues the product we
raise.
In light of the Supreme Court’s recognition (without express-
ing a view on the issue) that an attribution claim might form
the basis for an as-applied First Amendment challenge to the
Act, the district court’s decision must be vacated and the case
remanded for further proceedings to determine, among other
things, whether speech was attributed to appellants and, if so,
whether such attribution can and does support a claim that the
Act is unconstitutional as applied. Id.; see also id. at *9 n.*
(Thomas, J., concurring) (noting that, pursuant to Federal
Rule of Civil Procedure 15, “on remand respondents may be
able to amend their complaint to assert an attribution claim”).
VACATED AND REMANDED.
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