NCLA Uncovers Ongoing Efforts to Require Livestock Producers to Use RFID Eartags

R-CALF USA, Tracy and Donna Hunt, and Kenny and Roxy Fox v. USDA et al.

Washington, DC (February 28, 2020) – The New Civil Liberties Alliance, a nonpartisan nonprofit civil rights organization, has filed a supplemental asking the Court to reopen its case against the U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS). The motion seeks to block ongoing efforts to rely upon an unlawful “guidance” document to mandate the use of radio frequency identification (RFID) tracking technology on livestock. This latest filing asks Nancy D. Freudenthal, U.S. District Judge for the District of Wyoming, to revisit the court order she recently issued in R-CALF et al. v. USDA et al., which dismissed the lawsuit upon her concluding that the agencies had fully withdrawn their previous efforts to require livestock producers to use RFID eartags.

In her February 13th order, Judge Freudenthal found that the case was now moot because the USDA and APHIS had responded to NCLA’s lawsuit by withdrawing the unlawful guidance “Factsheet” and removing it from the agency website. Her order made it clear that she believed USDA’s Factsheet and underlying policy have been fully and completely withdrawn, and she also emphasized that “[the agencies have] unambiguously stated that the requirements of the 2019 Factsheet will not be implemented[.]”

Nevertheless, NCLA recently found an “informational page” nearly identical to the Factsheet published in the February 2020 edition of Nebraska Cattleman magazine announcing that RFID eartags will become mandatory, albeit through a phased approach. The “informational page” is on USDA/APHIS letterhead, and it states that it is funded by those agencies pursuant to a cooperative agreement with the Nebraska Department of Agriculture. This announcement confirms that NCLA was rightly concerned that USDA/APHIS had failed to issue and publish an effective retraction of the 2019 Factsheet and that there remains substantial confusion and uncertainty in the industry. NCLA’s latest motion asks the judge to reopen the case for the purpose of issuing a declaratory judgment and ordering the agencies to make a more robust effort at notifying states and others that the RFID mandate has been withdrawn.

NCLA filed a motion with the court last week to allow R-CALF and the ranchers affected by the agencies’ unlawful actions to proceed with discovery and to block USDA and APHIS from using any work product, reports, and materials generated by one or more advisory committee(s) that they had convened in violation of the Federal Advisory Committee Act. NCLA argued that such a move was necessary to ensure that any future efforts to adopt the RFID requirement is not tainted by such materials.

–NCLA