Appeals court affirms dismissal of EID lawsuit
DENVER, Colo. – A three judge panel with the 10th Circuit Court of Appeals has upheld a lower court’s decision to dismiss a lawsuit brought by four Wyoming and South Dakota ranchers against the United States Department of Agriculture’s Animal Plant Health Inspection Service (APHIS) over its proposed EID tag mandate for cattle moving interstate.
The 46-page opinion, written by Senior U.S. Circuit Judge Mary Beck Briscoe, was published on Friday, May 20.
In 2019, Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA), represented by Harriet Hageman of the New Civil Liberties Alliance, joined the four ranchers in filing a lawsuit against APHIS in the District of Wyoming, alleging that the agency’s plan to implement an EID tag mandate was unlawful. After APHIS withdrew the mandate, the initial lawsuit was dismissed in 2020.
However, during APHIS’s rulemaking process, two groups — the Cattle Traceability Working Group (CTWG) and the Producers Traceability Council (PTC) — were formed and met to discuss EID technology and offer input for the APHIS rulemaking process. In April 2021, R-CALF filed an amended complaint, alleging that the make up of those groups which advised the APHIS EID mandate was “biased.”
R-CALF alleged USDA and APHIS provided funding and resources for a conference that led to the groups’ formation, and also that the agencies set a list of goals for the groups to accomplish, which R-CALF said violated the Federal Advisory Committee Act (FACA). That law says advisory groups “established” by the executive branch must contain a diverse and balanced group of stakeholders. R-CALF also sought an injunction to prevent the USDA from using input gathered by the working groups.
However, the USDA argued it had no hand in “establishing” CTWG or PTC. The Wyoming court agreed, writing in its decision, “…it seems clear that APHIS wanted, needed, envisioned and recommended the creation of an industry-led group (like CTWG and PTC) to work in furtherance of APHIS’s objective…”
“APHIS also worked with both entities, and corrected work product produced by the entities. However, notwithstanding R-CALF’s arguments to the contrary, there is no evidence to suggest that either group was directly formed by APHIS.”
The suit was dismissed by the Wyoming court in 2021, which R-CALF then appealed.
“The Record shows that Appellees ‘established’ CTWG and PTC, under any reasonable understanding of that term,” Hageman wrote in R-CALF’s appeal. “R-CALF’s opening brief sets out a lengthy summary of the evidence demonstrating that Appellees not only were the driving force in the advisory committees’ formation but also laid out in detail what goals the agencies expected the committees to accomplish.”
However, after reviewing precedent to determine the meaning of “establish,” and a lengthy review of the USDA’s records, the appeals court upheld the Wyoming court’s decision.
“Because the administrative record contains no support for plaintiffs’ claims that defendants ‘established’ or ‘utilized’ CTWG or PTC, those entities cannot be considered ‘advisory committees’ within the purview of FACA,” Briscoe wrote in the opinion. “Consequently, we conclude that defendants were not, as asserted by plaintiffs, required to comply with FACA’s procedural requirements in connection with their interactions with CTWG or PTC.”
The USDA is still working on the rulemaking process.
“After reviewing 944 public comments on a July 2020 notice that proposed to approve Radio Frequency Identification (RFID) as the official eartag for use in interstate movement of cattle, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has decided to use the rulemaking process for future action related to this proposal,” the USDA announced in March, 2021. “This means that the original notice will not be finalized, and that all current APHIS-approved methods of identification may be used as official identification until further notice.”
APHIS said in that announcement that while EIDs are not required, it will continue encouraging cattle producers to use them while it works on a final rule.
Under the current regulations, USDA issued eartags may be used as official identification, and both visual-only metal and plastic tags, as well as RFID tags are current options.
The animal disease traceability (ADT) regulations for cattle apply only to sexually intact beef animals over 18 months of age moving in interstate commerce, cattle used for exhibition, rodeo and recreational events, and all dairy cattle. The regulations permit brands and tattoos as acceptable identification if the shipping and receiving States agree and group/lot identification when a group/lot identification number (GIN) may be used.
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