By Max Kutner

Law360 (November 9, 2020, 7:43 PM EST ) A meat processing company has urged a New Mexico federal court to stop the state from temporarily closing one of its plants after more than four workers tested positive for COVID-19, saying a federal order should let it stay open.

Stampede Meat Inc. said in a complaint Friday that it should not have to comply with the state's directive because of an executive order by President Donald Trump prohibiting states from closing meat processing facilities when the facilities are in compliance with Centers for Disease Control and Prevention and Occupational Safety and Health Administration guidelines.

"The new Stampede closure order puts Stampede Meat in the potential dilemma of having to determine whether it will comply with defendants' state-issued directive, or whether it should comply with the plain meaning (and superior) order from the president of the United States to comply with federal regulations and stay open, providing critical resources for the nation's food supply," Stampede Meat said.

The dispute stems from an Oct. 22 order by the New Mexico Department of Health saying the state can close businesses for 14 days if four or more employees test positive for COVID-19.

On Nov. 3, the state ordered Stampede Meat, an Illinois-based food manufacturer that sells beef, pork and chicken products for Costco, Walmart, Denny's and other companies and restaurants, to temporarily close for that reason, according to the lawsuit.

But the company said it has been "at the forefront of the COVID-19 response," crafting a response plan even before any government directives, and that in May, the state had approved its plan.

A recent version of the company's plan, from late October, contained more than 80 safety measures, such as daily temperature checks, requiring employees to wear three forms of facial coverings and reconfiguring some production areas for social distancing, the complaint said.

The company admitted that more than four of its employees had tested positive. But it said those employees all were quarantining, as were employees who had come into close contact with them.

Because of its response to the pandemic, it was covered by Trump's executive order, and the federal order preempted the state directive, the complaint said.

"There is no indication that the Stampede Meat facility is either a source of COVID-19 spread, nor a significant public health risk. To the contrary, given the significant safety protocols, the Stampede Meat facility is likely a safer location than outside of the facility," the complaint said.

The company argued further that the state's order was "arbitrary and capricious" because other businesses on the state's Rapid Response COVID-19 Watchlist had been allowed to stay open with four or more positive cases. The company also claimed the threshold for closing was unfair to companies such as Stampede Meat, which had more than 500 employees at its facility, meaning four employees would account for less than 1% of its workforce.

Given that the company is among the country's "largest manufacturer[s] of portion-controlled proteins (including beef, chicken, turkey and pork) and meals (which include vegetables, soups and alternative proteins)," a two-week shutdown could cause food shortages, the company argued.

The company is "critical to the nation's response to this pandemic," it said, and "millions of pounds of meat will need to be destroyed if Stampede Meat is forced to close."

The case names the New Mexico Gov. Michelle Lujan Grisham and several other state officials as defendants, as well as the state's Environment Department and Department of Health.

Food processing plants around the country have experienced COVID-19 outbreaks since the start of the pandemic, and OSHA has issued citations to several of them for COVID-19-related worker safety violations.

Meat processing companies have previously cited Trump's April 2020 executive order when facing claims from the family members of meat plant workers who died from COVID-19.

In July, Tyson Foods argued in Texas federal court that it was not liable for the COVID-19 death of a worker because such claims were barred under the order. The company JBS SA made a similar argument in June when faced with a claim from the family of a worker who died from the coronavirus.

Meatpacking workers are considered at increased risk of contracting the coronavirus because conditions often require them to work in close quarters with other employees.

But Stampede Meat said its plant is different. "Stampede Meat's Sunland Park facility is not a cramped, close-quartered operation, as is the case with many other meat processing facilities. On the contrary, photos taken during operations on November 4 show the Sunland Park facility and operations are configured to allow for employees to socially distance the majority of the time," the complaint said.

The day Stampede Meat filed its lawsuit, the U.S. hit a new daily record of 132,830 COVID-19 cases, according to the CDC. New Mexico has had a total of 54,881 cases since the pandemic began, according to state data.

Counsel and a representative for Stampede Meat were not immediately available to comment Monday. A spokesperson for the New Mexico governor's office could not immediately be reached by phone or email.

Stampede Meat is represented by Moses B. Winston, V and Christopher J. Tebo of Ray Pena McChristian PC and Michael P. Palmer and Thomas G. Haskins, Jr. of Barnes & Thornburg LLP.

Counsel information for the State of New Mexico defendants was not immediately available Monday.

The case is Stampede Meat Inc. v. Michelle Lujan Grisham et al., case number 1:20-cv-01160, in U.S. District Court for the District of New Mexico.

--Additional reporting by Jon Steingart, Matthew Santoni and Daniel Wilson. Editing by Stephen Berg.

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