R-CALF USA files ID suit
Cheyenne, Wyo. – Today, Harriet Hageman, Senior Litigation Counsel with the New Civil Liberties Alliance (NCLA), filed a lawsuit in federal district court in Casper, Wyoming representing the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers from Wyoming and South Dakota, to stop the U.S. Department of Agriculture’s (USDA’s) effort to eliminate all animal identification options other than radio frequency identification (RFID) devices and premises registration for adult cattle and bison moving interstate.
In the complaint filed today, Oct. 4, 2019, R-CALF and the plaintiffs allege that USDA’s own 2013 rule prohibits states and tribes from requiring livestock producers use RFID for interstate movement of livestock, while their 2019 rule requires it. USDA did not follow the “notice and comment” process before publishing the 2019 rule, they also say.
“Petitioners seek an Order from the Court declaring the 2019 RFID Plan to be invalid and to have no force and effect of law, and enjoining Respondents from implementing an RFID program as stated therein,” states the complaint.
The lawsuit seeks declaratory judgment and an injunction against Secretary of Agriculture Sonny Perdue and USDA Administrator for the Animal and Plant Health Inspection Service (APHIS) Kevin Shae, who together issued the RFID mandate in April of this year.
The lawsuit alleges that USDA’s mandate that livestock producers use RFID ear tags, along with the requirement that they obtain a premises identification number (PIN), and the elimination of all other animal identification options currently available to U.S. cattle producers, violate current traceability regulations. The existing regulations, adopted in 2013, allow livestock producers to use the types of effective animal identification techniques and devices that have been widely used by the industry for over 100 years, including brands, tattoos, permanent metal ear tags, group/lot identification, and backtags on animals destined for harvest.
The lawsuit further alleges that the USDA violated the Federal Advisory Committee Act (FACA) by relying exclusively upon a hand-picked group of individuals who have been advocating for the use of RFID, including industry officials and ear tag manufacturers who stand to earn windfall profits from the mandate. The USDA created this advocacy committee simply by winnowing out those U.S. cattle producers who oppose RFID. The defendants’ actions in that regard violate federal law, which requires balanced representation on advisory committees.
According to Harriet Hageman: “This case is important well beyond the livestock industry. Under our Constitution, Congress is the legislative branch responsible for making the law. The executive branch, which encompasses USDA and APHIS, is tasked with carrying it out. Congress has not passed legislation requiring animal RFID, these agencies have. Of even greater concern is the fact that they did so through the back door and without following the law. Forcing livestock producers to adhere to an RFID program will have an enormous impact on their operations, with noncompliance resulting in the denial of access to interstate markets. The USDA and APHIS are seeking to force compliance through extralegal lawmaking. That practice violates our clients’ Constitutional rights. This situation is exactly why NCLA was formed-to stop federal agencies from violating the law by circumventing rulemaking.”
“When all of this started, we were fighting what they called National Animal Identification System which was much more restrictive than this,” said Kenny Fox.
“We attended listening sessions where there was huge opposition from all segments of the industry, especially producers. Now they ‘ve renamed it the ADT and they are trying to put it in, at a slower rate,” said Fox.
R-CALF USA CEO Bill Bullard said the U.S. cattle industry developed numerous and highly effective traceability systems over the past many decades, making the U.S. cattle industry’s disease resistance capabilities the envy of the world. Then, in the years leading up to 2013, cattle producers worked with USDA to further improve what was already a highly effective traceability system. That effort resulted in the 2013 Traceability of Livestock Moving Interstate regulation that improved traceability for adult animals through identification during interstate travel.
“Today, the USDA is catering to special interests and running roughshod over the rights of America’s cattle producers by forcing them and their industry to incur costs that could run into the billions of dollars. The agency wants to gift RFID ear tag manufactures even more profits and is continually subjecting our industry to greater risks of foreign disease introduction through unrestrained imports of cattle from Mexico, a known reservoir of bovine tuberculosis; and from Canada, a known reservoir of brucellosis.
“Our lawsuit draws a line in the sand telling the USDA that our industry will no longer stand for the agency’s blatant government overreach.” Bullard said.
The individual plaintiffs in this case are Tracy and Donna Hunt, cattle ranchers from Newcastle, Wyoming, and Kenny and Roxie Fox, cattle ranchers from Belvidere, South Dakota.
–from R-CALF USA with minor TSLN edits
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Outtagrass Cattle Co. cartoon by Jan Swan Wood for the Oct. 23, 2021, edition of Tri-State Livestock News