`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`RANCHERS CATTLEMEN ACTION
`LEGAL FUND UNITED
`STOCKGROWERS OF AMERICA, a
`Montana Corporation,
`Plaintiff-Appellant,
`
`
`
` No. 20-35453
`
`D.C. No.
`4:16-cv-00041-
`BMM
`
`
`OPINION
`
`v.
`
`
`THOMAS VILSACK, in his Official
`Capacity as Secretary of Agriculture;
`UNITED STATES DEPARTMENT OF
`AGRICULTURE,
`Defendants-Appellees,
`
`
`MONTANA BEEF COUNCIL;
`NEBRASKA BEEF COUNCIL;
`PENNSYLVANIA BEEF COUNCIL;
`TEXAS BEEF COUNCIL; LEE
`CORNWELL; GENE CURRY; WALTER
`J. TAYLOR, JR.,
`Intervenor-Defendants-Appellees.
`
`Appeal from the United States District Court
`for the District of Montana
`Brian M. Morris, District Judge, Presiding
`
`Argued and Submitted June 10, 2021
`Portland, Oregon
`
`
`
`
`2
`
`
`R-CALF V. VILSACK
`
`Filed July 27, 2021
`
`Before: Kim McLane Wardlaw, Richard C. Tallman, and
`Andrew D. Hurwitz, Circuit Judges.
`
`Opinion by Judge Hurwitz
`
`
`SUMMARY*
`
`Beef Promotion and Research Act/Government Speech
`
`
`
`
`the district court’s summary
`The panel affirmed
`
`judgment in favor of federal defendants and state intervenor
`defendants in an action brought by the Ranchers-Cattlemen
`Action Legal Fund challenging certain mandatory
`assessments on cattle sales imposed by federal law that are
`used to fund advertisements for beef products.
`
`The Beef Promotion and Research Act of 1985 imposes
`
`a $1 assessment, or “checkoff,” on each head of cattle sold
`in the United States to fund beef consumption promotional
`activities. Defendant, the Secretary of Agriculture, oversees
`the beef checkoff program. Intervenor defendants, the
`Montana Beef Council and other qualified state beef
`councils (QSBCs), receive a portion of the checkoff
`assessments to fund promotional activities and may direct a
`portion of these funds to third parties for the production of
`advertisements and other promotional materials. The
`Ranchers-Cattlemen Action Legal Fund’s
`(R-CALF)
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`3
`
`R-CALF V. VILSACK
`
`
`
`members include cattle producers who object to their
`QSBCs’ advertising campaigns.
`
`In 2016, during the pendency of prior litigation, the
`
`Secretary entered
`into memoranda of understanding
`(MOUs) with QSBCs which granted the Secretary pre-
`approval authority over, among other things, any and all
`promotion and which allowed the Secretary to decertify a
`noncompliant QSBCs, thereby terminating its access to
`checkoff funds. Under the MOUs, the Secretary must pre-
`approve all contracts to third parties and any resulting plans
`or project. But QSBCs can also make noncontractual
`transfers of checkoff funds to third parties for promotional
`materials which do not need to be pre-approved. Plaintiffs
`and intervenors contend that the distribution of funds under
`these arrangements is an unconstitutional compelled subsidy
`of private speech.
`
`The panel first held that plaintiff, R-CALF had
`
`associational standing to sue the twelve QSBCs to which its
`members pay checkoffs. The panel further held that R-
`CALF also had direct standing to sue in states where its
`members did not pay checkoffs because the beef checkoff
`program affected its mission of protecting domestic,
`independent cattle producers.
`
`The panel held that the speech generated by the third
`
`parties for promotional materials was government speech
`and therefore exempt from First Amendment scrutiny.
`Noting that this case was similar to Paramount Land Co. LP
`v. Cal. Pistachio Comm’n, 491 F.3d 1003 (9th Cir. 2007),
`and Delano Farms Co. v. Cal. Table Grape Comm’n, 586
`F.3d 1219 (9th Cir. 2009), the panel stated that under the
`MOUs, the QSBCs must submit for pre-approval by the
`Secretary any and all promotion, advertising, research, and
`
`
`
`R-CALF V. VILSACK
`
`4
`
`consumer information plans and projects and any and all
`potential contracts or agreements to be entered into by the
`QSBCs for the implementation and conduct of plans or
`projects funded by checkoff funds. The QSBCs must also
`submit an annual budget outlining and explaining
`anticipated expenses and disbursements and a general
`description of the proposed promotion, research, consumer
`information,
`and
`industry
`information
`programs
`contemplated. Promotional campaigns by the QSBCs and
`contracted third parties subject to the Secretary’s pre-
`approval were therefore plainly government speech.
`
`The panel additionally held that third-party speech not
`
`subject to pre-approval was also effectively controlled by the
`government. The panel noted that, as in Paramount Land,
`the message sent out in the promotions was firmly
`established by the federal government. Moreover, in
`addition to its oversight over promotional materials, the
`government also had the authority to control speech by the
`unquestioned control of the flow of assessment funds to the
`QSBCs—and the threat of decertification under the MOUs
`and federal regulations if the Secretary disapproved of the
`use of those funds.
`
`The panel affirmed the district court’s denial of a
`
`permanent injunction requiring the continuation of the
`MOUs. The panel held that under these circumstances, the
`MOUs were an entrenched change in the prior status quo,
`and the district court did not err, in the absence of any
`evidence that the Secretary intends to withdraw from the
`MOUs, in declining to enter a permanent injunction
`requiring him not to.
`
`
`
`
`R-CALF V. VILSACK
`
`5
`
`COUNSEL
`
`
`
`
`
`(argued), Public Justice P.C.,
`David S. Muraskin
`Washington, D.C.; William A. Rossbach, Rossbach Law
`P.C., Missoula, Montana; J. Dudley Butler, Butler Farm &
`Ranch Law Group PLLC, Benton, Mississippi; for Plaintiff-
`Appellant.
`
`Lindsey Powell (argued) and Michael S. Raab, Appellate
`Staff; Civil Division, United States Department of Justice,
`Washington, D.C.; Ryan M. Majerus, Senior Counsel;
`Stephen A. Vaden, General Counsel; United States
`Department of Agriculture, Washington, D.C.;
`for
`Defendants-Appellees.
`
`Jean-Claude André (argued), Bryan Cave Leighton Paisner
`LLP, Santa Monica, California; Bryan J. Harrison, Bryan
`Cave Leighton Paisner LLP, Washington, D.C.; Robert M.
`Thompson and Mollie E. Harmon, Bryan Cave Leighton
`Paisner LLP, Kansas City, Missouri; Randy J. Cox, Boone
`Karlberg P.C., Missoula, Montana;
`for
`Intervenor-
`Defendants-Appellees.
`
`Tyler Lobdell and Tarah Heinzen, Food & Water Watch,
`Washington, D.C., for Amici Curiae Food & Water Watch,
`Dakota Rural Action, Family Farm Action Alliance, Farm
`and Ranch Freedom Alliance, Institute for Agriculture and
`Trade Policy, Iowa Citizens for Community Improvement,
`Rural Advancement Foundation International USA, and
`Western Organization of Resource Councils.
`
`
`
`
`
`
`
`6
`
`
`R-CALF V. VILSACK
`
`OPINION
`
`HURWITZ, Circuit Judge:
`
`This case involves a challenge by the Ranchers-
`Cattlemen Action Legal Fund (“R-CALF”) to mandatory
`assessments on cattle sales imposed by federal law used to
`fund advertisements for beef products. The Montana Beef
`Council (“MBC”) and other qualified state beef councils
`(“QSBCs”) receive a portion of the assessments to fund
`promotional activities and some of these QSBCs direct a
`portion of these funds to third parties. The dispositive
`question is whether the speech generated by the third parties
`is government speech and therefore exempt from First
`Amendment scrutiny. The district court so held and entered
`summary judgment against R-CALF. We affirm.
`
`I
`
`A
`
`The Beef Promotion and Research Act of 1985 (“Beef
`Act”) imposes a $1 assessment, or “checkoff,” on each head
`of cattle sold in the United States to fund consumption
`promotions to “maintain and expand domestic and foreign
`markets and uses for beef and beef products.” 7 U.S.C.
`§§ 2901(b), 2904(8)(C). The Secretary of Agriculture
`oversees the beef checkoff program through the Cattlemen’s
`Beef Promotion and Research Board (the “Beef Board”),
`whose members the Secretary appoints. Id. § 2904(1).1 A
`QSBC typically collects the checkoff, retaining 50 cents to
`
`1 The Beef Board elects ten members to the Beef Promotion
`Operating Committee; a federation of QSBCs elects the other ten
`members. 7 U.S.C. § 2904(4)(A). The Operating Committee develops
`promotional campaigns for the Beef Board. See 7 U.S.C. § 2904(4)(B).
`
`
`
`7
`
`R-CALF V. VILSACK
`
`
`
`fund state marketing efforts, and forwarding the remainder
`to the federal program. Id. § 2904(8)(C); 7 C.F.R.
`§ 1260.172(a)(3). Producers may, however, opt out of
`funding their QSBC and direct the entire assessment to the
`federal program. See Beef Promotion and Research, 84 Fed.
`Reg. 20,765, 20,766–67 (May 13, 2019).
`
`Since 2016, the Secretary, through the Agricultural
`Marketing Service (“AMS”), has entered into memoranda of
`understanding (“MOUs”) with QSBCs. The MOUs grant
`the Secretary pre-approval authority over “any and all
`promotion, advertising, research, and consumer information
`plans and projects.” The Secretary also reviews and
`approves the QSBCs’ budgets and marketing plans, which
`detail their anticipated expenses and disbursements, and
`government officials can participate in QSBC board
`meetings at which promotional and funding decisions are
`made. The MOUs allow the Secretary to decertify a
`noncompliant QSBC, thereby terminating its access to
`checkoff funds.
`
`Using checkoff funds, QSBCs can hire private third
`parties to produce advertisements and other promotional
`materials. Some engagements involve contracts. Under the
`MOUs, the Secretary must pre-approve all contracts and any
`plans or projects developed under them. The parties agree
`that third-party speech generated pursuant to these contracts
`is government speech.
`
`But QSBCs can also make noncontractual transfers of
`checkoff funds to third parties to produce promotional
`materials. Materials produced by this funding method need
`not be pre-approved. Recipients of these transfers must
`identify their expenditures in an “annual accounting” and
`abide by the principles of the Beef Act—promoting beef
`without being unfair, deceptive, or political. The primary
`
`
`
`R-CALF V. VILSACK
`
`8
`
`issue on appeal is whether speech made by third parties
`under these arrangements is effectively government speech.
`
`B
`
`R-CALF’s members include cattle producers who object
`to their QSBCs’ advertising campaigns. R-CALF first
`challenged the checkoff program in 2016, alleging that the
`distribution of funds to the MBC under the federal program
`is an unconstitutional compelled subsidy of private speech.
`While that litigation was pending, the MBC entered into an
`MOU with the Secretary. Without considering the MOU,
`the district court entered a preliminary injunction preventing
`the use of checkoff funds for promotional campaigns absent
`the producers’ consent. A divided panel affirmed the
`preliminary injunction; the majority expressly declined to
`consider the effect of the MOU. R-CALF v. Perdue, 718 F.
`App’x 541, 542 n.1 (9th Cir. 2018). The dissent opined that
`the MOU “plainly grants the Secretary complete pre-
`approval authority over ‘any and all promotion, advertising,
`research, and consumer information plans and projects’ of
`the MBC,” and
`therefore would have vacated
`the
`preliminary injunction. Id. at 543 (Hurwitz, J., dissenting)
`(quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550,
`560 (2005)).
`
`On remand, R-CALF amended its complaint to seek
`relief against fourteen additional QSBCs, all of which had
`MOUs with the Secretary. Four QSBCs and three producers
`intervened to defend the program. The district court granted
`summary judgment to the Secretary and intervenors,
`adopting a magistrate judge’s proposed findings of fact and
`conclusions of law.
`
`The district court found that R-CALF had standing to
`sue. But it concluded that the MOUs gave the Secretary
`
`
`
`R-CALF V. VILSACK
`
`
`
`sufficient control over the promotional program to make the
`QSBCs’ speech—and the speech of third parties they paid—
`effectively government speech. It also rejected R-CALF’s
`request for an injunction to ensure the Secretary continues to
`enforce the terms of the MOUs. R-CALF timely appealed.
`
`9
`
`II
`
`We agree with the district court that R-CALF has
`associational standing to sue the twelve QSBCs to which its
`members pay checkoffs. But R-CALF concedes that it lacks
`such standing to challenge the use of checkoff funds by
`QSBCs in states where none of its members pay checkoffs—
`Hawaii, South Carolina, and Vermont. Thus, R-CALF must
`establish direct standing to sue those three QSBCs.
`
`“[A]n organization has direct standing to sue where it
`establishes that the defendant’s behavior has frustrated its
`mission and caused it to divert resources in response to that
`frustration of purpose.” E. Bay Sanctuary Covenant v.
`Biden, 993 F.3d 640, 663 (9th Cir. 2021). “Of course,
`organizations cannot manufacture the injury by incurring
`litigation costs or simply choosing to spend money fixing a
`problem that otherwise would not affect the organization at
`all, but they can show they would have suffered some other
`injury had they not diverted resources to counteracting the
`problem.” Id. (cleaned up); see also Am. Diabetes Ass’n v.
`U.S. Dep’t of the Army, 938 F.3d 1147, 1154–55 (9th Cir.
`2019) (collecting cases).
`
`includes “protecting domestic,
`R-CALF’s mission
`independent cattle producers.” R-CALF uses some 60% of
`its resources to educate producers on the use of checkoff
`funds by QSBCs. The beef checkoff program affects that
`mission and R-CALF has devoted (and continues to devote)
`resources, independent of expenses for this litigation, to deal
`
`
`
`R-CALF V. VILSACK
`
`10
`
`with the program that might otherwise be used in support of
`that mission. See Comite de Jornaleros de Redondo Beach
`v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011)
`(en banc) (spending “time and resources” to “meet” with
`impacted individuals that kept from other “core organizing
`activities” established standing); see also Valle del Sol Inc.
`v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (“divert[ing]
`resources to educational programs” established standing).
`Moreover, if R-CALF did not pursue this litigation, the
`QSBCs would have continued to use funds in a way that
`would frustrate R-CALF’s organizational mission by
`allegedly “promot[ing] corporate consolidation in the beef
`industry.” See E. Bay Sanctuary, 993 F.3d at 663. We
`therefore find that R-CALF has direct standing to pursue this
`litigation against the three QSBCs to which none of its
`members pay checkoffs.
`
`III
`
`A
`
`The critical question in determining whether speech is
`public or private is whether the speech is “effectively
`controlled” by the government. Johanns, 544 U.S. at 560.
`In Johanns, the Supreme Court upheld the federal portion of
`the beef checkoff program against a compelled-speech
`attack because “the government sets the overall message to
`be communicated and approves every word
`that
`is
`disseminated.” Id. at 562. Johanns “emphasized three
`overlapping aspects” of the federal program: (1) “Congress
`directed the establishment of the program itself, including its
`promotional activities,” (2) “Congress and the Secretary
`specify the general content of the promotional campaigns,”
`and (3) “the Secretary ‘exercises final approval authority
`over every word used in every promotional campaign.’”
`Paramount Land Co. LP v. Cal. Pistachio Comm’n, 491 F.3d
`
`
`
`R-CALF V. VILSACK
`
`
`
`1003, 1009–10 (9th Cir. 2007) (quoting Johanns, 544 U.S.
`at 560–61, 563); see also Delano Farms Co. v. Cal. Table
`Grape Comm’n, 586 F.3d 1219, 1226–27 (9th Cir. 2009)
`(identifying the same factors).
`
`11
`
`Applying the Johanns factors, this Court has twice
`issued opinions upholding mandatory assessment programs
`against First Amendment attacks.2 Paramount Land refused
`to enjoin as unconstitutional a California statute providing
`subsidies from assessments on pistachio sales to the
`California Pistachio Commission because the State had
`specified the overall goal of the program—to promote
`pistachio sales—and exercised control over messaging.
`491 F.3d at 1010–12. The Commission, comprised of nine
`members, only one of whom was named by the State, was
`required to submit to the State for concurrence “an annual
`statement of contemplated activities
`. . .
`including
`advertising, promotion, marketing research, and production
`research.” Id. at 1010 (quoting Cal. Food & Agric. Code
`§ 69051(q)). Noting that the State had “less control” over
`the Commission than the Secretary exercised over the Beef
`Board, the Paramount panel nonetheless concluded that
`“[t]o draw a line between these two approaches to oversight
`risks micro-managing legislative and regulatory schemes, a
`task federal courts are ill-equipped to undertake.” Id.
`at 1011–12.
`
`Delano Farms upheld similar compulsory assessments
`on California table grape growers, citing a state legislative
`directive
`that went “much further
`in defining
`the
`Commission’s message than the Beef Act” along with the
`
`2 In an unpublished decision, this Court also upheld mandatory
`assessments on rental car transactions. See In re Tourism Assessment
`Fee Litig., 391 F. App’x 643, 645–46 (9th Cir. 2010).
`
`
`
`R-CALF V. VILSACK
`
`12
`
`State’s power to appoint and remove all California Table
`Grape Commissioners. 586 F.3d at 1225, 1228, 1230. The
`Court reached this conclusion despite recognizing that the
`statute did “not require any type of review by the [State] over
`the actual messages promulgated by the Commission.” Id.
`at 1229.
`
`B
`
`This case is similar to Paramount Land and Delano
`Farms. Under the MOUs, QSBCs must submit “for pre-
`approval” by the Secretary “any and all promotion,
`advertising, research, and consumer information plans and
`projects”3 and “any and all potential contracts or agreements
`to be entered into by [QSBCs] for the implementation and
`conduct of plans or projects funded by checkoff funds.”4
`QSBCs must also submit “an annual budget outlining and
`explaining . . . anticipated expenses and disbursements” and
`a “general description of the proposed promotion, research,
`consumer information, and industry information programs
`contemplated.” See Paramount Land, 491 F.3d at 1010
`(noting that the Pistachio Commission must submit “an
`annual statement of contemplated activities . . . including
`advertising, promotion, marketing research, and production
`research” (quoting Cal. Food & Agric. Code § 69051(q))).
`Failure to comply can lead to de-certification of the QSBCs
`by the Secretary. This establishes, as in the federal program,
`“final approval authority over every word used in every
`promotional campaign.” Johanns, 544 U.S. at 561.
`
`3 QSBCs have submitted thousands of approval requests to the
`AMS. For example, the Texas QSBC has made more than 650
`submissions, and it may take days or weeks before a final product is
`approved.
`
`4 In 2018 and 2019, the AMS reviewed about 155 QSBC contracts.
`
`
`
`R-CALF V. VILSACK
`
`
`
`Promotional campaigns by QSBCs and contracted third
`parties subject to the Secretary’s pre-approval are therefore
`plainly government speech.
`
`13
`
`Third-party speech not subject to pre-approval is also
`“effectively controlled” by the government. Congress
`expressly contemplated the participation of third parties in
`the beef checkoff program, designating several “established
`national nonprofit industry-governed organizations” with
`whom
`the Operating Committee could contract
`to
`“implement programs of promotion.” 7 U.S.C. § 2904(6).5
`The Supreme Court upheld that program despite recognizing
`the presence of “assistance from nongovernmental sources
`in developing” advertising. Johanns, 544 U.S. at 562.
`
`Paramount Land vacated a preliminary injunction in a
`similar program despite the Pistachio Commission’s use of
`funds from assessments to pay “a political consultant who
`hires
`lawyers
`to represent
`the
`industry before
`the
`International Trade Commission and
`the Commerce
`Department, and to lobby government entities on behalf of
`the pistachio industry.” 491 F.3d at 1007. We treated the
`third-party speech as that of the Commission because the
`“message set out in the pistachio promotions is from
`
`
`two advocacy
`to
`third-party funding goes
`the
`5 Most of
`organizations—the Federation Division of the National Cattleman’s
`Beef Association (“Federation”) and the United States Meat Export
`Federation (“USMEF”)—with established relationships with the Beef
`Board. Congress gave the Federation an express role in the beef checkoff
`program, authorizing it to elect members of the Operating Committee,
`7 U.S.C. § 2904(4)(A), and directing the Operating Committee to “enter
`into contracts or agreements . . . with established national nonprofit
`industry-governed organizations, including the federation
`. . . to
`implement programs of promotion, research, consumer information, and
`industry information,” 7 U.S.C. § 2904(6).
`
`
`
`R-CALF V. VILSACK
`
`14
`
`beginning to end the message established by the state
`government.” Id. at 1012 (cleaned up).
`
`Here, too, the message is firmly established by the
`federal government.
` The Beef Act’s
`implementing
`regulations require that all third-party speech “strengthen the
`beef industry’s position in the marketplace,” and not
`mention “brand or trade” names, engage in “unfair or
`deceptive acts or practices,” or seek
`to
`influence
`“governmental policy or action.” 7 C.F.R. § 1260.169(a),
`(d), (e). QSBCs must submit annual budget and marketing
`proposals for
`the Secretary’s approval
`that contain
`“anticipated expenses and disbursements” and “a general
`description of the proposed promotion
`. . . programs
`contemplated.” In addition, the QSBCs must give the
`Secretary advance notice of all board meetings, allowing
`participation by the Secretary or his designees in any
`discussions about payments to third parties.6
`
`R-CALF argues that such safeguards are insufficient
`because the government does not exercise final pre-approval
`authority over some third-party speech. But in Paramount
`Land, we found dispositive the government’s ability to
`control speech, even when it declined to do so. See 491 F.3d
`at 1011–12. Here, the Secretary clearly has that authority.
`In addition to the oversight previously mentioned, the
`Secretary has unquestioned control of the flow of assessment
`funds to the QSBCs—and the threat of decertification under
`the MOUs and the regulations if he disapproves of the use of
`those funds. See 7 C.F.R. § 1260.181(a) (providing for
`certification, and, impliedly, decertification of QSBCs by
`
`6 Defendants also argue that the opt-out scheme cures any First
`Amendment concern. Because we hold that the government effectively
`controls the speech at issue, we do not reach this issue.
`
`
`
`15
`
`R-CALF V. VILSACK
`
`
`
`the Beef Board); see also id. § 1260.213 (providing for the
`removal of Beef Board members by the Secretary). “Just as
`‘the Secretary of Agriculture does not write the copy of the
`beef advertisements himself’ for the Beef Board, neither
`should such oversight be required for the [] scheme to pass
`constitutional muster.” Paramount Land, 491 F.3d at 1012
`(quoting Johanns, 544 U.S. at 560) (cleaned up). A contrary
`holding here “risks micro-managing
`legislative and
`regulatory schemes, a task federal courts are ill-equipped to
`undertake.” Id. at 1012.7
`
`We therefore affirm the summary judgment of the
`district court.
`
`IV
`
`Even if the underlying summary judgment is affirmed,
`R-CALF nonetheless argues that the district court should
`have entered a permanent
`injunction
`requiring
`the
`continuation of the MOUs to prevent the risk that the current
`policy will be undone. The district court determined that no
`
`7 R-CALF also argues that the QSBCs must have at least some
`members appointed and removable by the Secretary for the speech to
`constitute government speech. But the Secretary’s ability to decertify a
`QSBC—which has been previously exercised—provides even greater
`oversight than the limited removal authority this Court has cited in other
`cases. See Delano Farms, 586 F.3d at 1229 (noting the State’s power to
`remove individual members of the Table Grape Commission and to
`recommend that producers suspend the Commission’s operation);
`Paramount Land, 491 F.3d at 1011 (noting that while the Secretary
`cannot remove members of the Pistachio Commission, she may “suspend
`or discharge the Commission’s president if he has engaged in any
`conduct that the Secretary determines is not in the public interest,” or
`“correct or cease any existing activity or function that is determined by
`the [S]ecretary not to be in the public interest or in violation of the
`Pistachio Act”) (cleaned up).
`
`
`
`R-CALF V. VILSACK
`
`16
`
`injunction was needed because the MOUs mooted R-
`CALF’s entitlement to relief and no exception to mootness
`applied.
`
`“It is well-established . . . that ‘voluntary cessation of
`allegedly illegal conduct does not deprive the tribunal of
`power to hear and determine the case’ unless ‘it can be said
`with assurance that there is no reasonable expectation that
`the alleged violation will recur’ and ‘interim relief or events
`have completely and irrevocably eradicated the effects of the
`alleged violation.’” Fikre v. FBI, 904 F.3d 1033, 1037 (9th
`Cir. 2018) (cleaned up) (quoting Cnty. of Los Angeles v.
`Davis, 440 U.S. 625, 631 (1979)). The government receives
`greater deference than private parties when courts analyze
`voluntary cessation. See Am. Cargo Transp., Inc. v. United
`States, 625 F.3d 1176, 1180 (9th Cir. 2010) (collecting
`cases). But the government “must still demonstrate that the
`change in its behavior is entrenched or permanent.” Fikre,
`904 F.3d at 1037 (cleaned up). It must be “absolutely clear
`to the court, considering the procedural safeguards insulating
`the new state of affairs from arbitrary reversal and the
`government’s rationale for its changed practices, that the
`activity complained of will not reoccur.” Id. at 1039
`(cleaned up).
`
`The government has met that burden here. To be sure,
`the MOUs are revocable. And, the Secretary entered into the
`first MOU only after the magistrate judge recommended a
`preliminarily injunction in this case. But, over five years
`have now passed since the Secretary first entered into the
`MOUs to document the Department’s control of the use of
`checkoff funds—including with QSBCs not named in this
`litigation. See Am. Diabetes Ass’n, 938 F.3d at 1153 (finding
`two years of policy weighs in favor of mootness). And the
`MOUs remain binding unless both parties agree to rescind
`
`
`
`17
`
`R-CALF V. VILSACK
`
`
`
`them, providing safeguard from arbitrary reversal. See
`Fikre, 904 F.3d at 1039. Under these circumstances, the
`MOUs are an “entrenched” change in the prior status quo,
`and the district court did not err, in the absence of any
`evidence that the Secretary intends to withdraw from the
`MOUs, in declining to enter a permanent injunction
`requiring him not to.8
`
`AFFIRMED.
`
`
`8 We also reject R-CALF’s cursory argument that the MOUs are
`unlikely to remain in place because they did not go through notice and
`comment. Even assuming that R-CALF preserved this argument by
`raising it below, an MOU is not a legislative rule for which notice and
`comment is required. See, e.g., Perez v. Mortg. Bankers Ass’n, 575 U.S.
`92, 102 (2015); Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d 1082,
`1087 (9th Cir. 2003).
`
`