WYOMING – Cheyenne attorney Harriet Hageman and her nonprofit New Civil Liberties Alliance continue battling the USDA and its sub-agency, Animal and Plant Health Inspection Service, for “unlawfully” trying to force producers to use “radio frequency identification” tags.

They claim USDA and APHIS used illegally formed committees and are delaying releases of requested materials while planning to implement the electronic eartag program.

In 2013, USDA’s “Traceability for Livestock Moving Interstate” final rule allowed cattle and bison producers to continue using traditional, flexible, “low-cost” identification methods such as brands, tattoos and metal eartags – they would not be required to use RFID tags.

Mandate

However, USDA and APHIS then began pushing a “mandate” requiring any cattle crossing state lines to have RFID tags for animal disease traceability, according to the USDA “factsheet.” Ranchers would not be able to sell cattle to another state without “an entirely new form of identification,”

“In short, these agencies have gone from a rule that prohibits an RFID-only approach, to one that mandates RFID use,” NCLA says. “The RFID pronouncement actually nullifies the 2013 final rule, while imposing additional costs of $1 billion to 2 billion dollars on the industry.”

The USDA and APHIS violated the Federal Advisory Committee Act and the Administrative Procedure Act and “their own regulations as set forth in the 2013 Final Rule.”

(USDA’s) unlawful RFID mandate is just the latest effort to try to prevent cattle producers from using those tried-and-true animal identification methods … that until now had been perfectly acceptable,” it says. 

Lawsuit filed

In 2019, NCLA filed a lawsuit on behalf of Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, or R-CALF, in Wyoming’s U.S. District Court before Judge Nancy Freudenthal.

In November 2020, Hageman demanded completion of the USDA’s administrative record, seeking documents about how two separate committees formed and met. She argued the second was created illegally after some original committee’s members opposing RFID tags were excluded; the second one was made of pro-RFID officials, according to court documents.

“The ultimate question to be decided by this Court is whether USDA ‘established’ or ‘utilized’ these committees,” Hageman said.

Judge Freudenthal determined the case would be judged solely by the administrative record – which Hageman is still trying to complete.

R-CALF demanded last December nine USDA documents from 2017 be added – including a Denver airport hotel conference, a couple of USDA slide shows, an official program from a strategy forum and a white paper written afterward. In December, the judge ordered half of R-CALF’s requests be filled, denying the rest.

USDA removed the factsheet and asked for the case to be dismissed. Judge Freudenthal determined that was sufficient for dismissal but allowed Hageman to continue arguing an amended procedural claim.

Amended claim

On Feb. 8, Hageman wrote, “Although they withdrew the ‘factsheet,’ (USDA and APHIS) have not abandoned their efforts to force livestock producers to use RFID technology. In July 2020, for example, defendants published a non-rulemaking announcement in the Federal Register seeking comments on their proposal to ‘only approve (RFID) tags as official eartags for use in interstate movement of cattle and bison,’ beginning in 2023.”

(Hageman referred to “Use of Radio Frequency Identification Tags as Official Identification in Cattle and Bison,” published on July 6, 2020, in the Federal Register.)

The administrative record shows in 2017 USDA and APHIS determined “RFID technology should become mandatory for all cattle by Jan. 1, 2023; they needed to develop a comprehensive plan to address ‘the multitude of very complex issues related to the implementation of a fully integrated electronic system’ and a ‘specialized industry-led task force with government participation should develop the plan.’”

The goal is still to require all cattle producers are using RFID eartag technology by Jan. 1, 2023, against the 2013 final rule, Hageman argued.

“Last year, for example, they requested public comment on a proposal to equate ‘official eartag’ with an RFID eartag,” making it mandatory, while prohibiting the use of metal eartags as allowed in the 2013 final rule.

Hageman said an injunction is “the only effective means of ensuring that (USDA and APHIS) comply with FACA, and to send the message that federal courts will not tolerate agencies’ resorting to subterfuge to avoid compliance with the statute.” 

Delay tactics

Each time the court orders more documents, Hageman said, USDA sends “partial responses” leading to more requests. R-CALF used the Freedom of Information Act to obtain relevant documents, Hageman stated in her Dec. 21, 2020, brief.

On Feb. 12, Hageman filed a new supplemental motion seeking more documents added the administrative record, pointing to the USDA and APHIS’s “continued failure to disclose relevant documents in a timely fashion.”

“Just last month (January 2021), for example, government employees delinquently provided a fifth response to the March 23, 2020, FOIA request, directed to … (APHIS) by releasing more than 100 pages of documents related to APHIS’s plans to require the cattle industry to use ‘RFID’ eartag technology by Jan. 1, 2023,” she wrote.

“R-CALF has now determined that several of the just-released documents are highly relevant to its pending claims against USDA under the Federal Advisory Committee Act. To date, however, (USDA) made no effort to supplement its administrative record by providing these documents to the court (despite having possession of these documents since before (NCLA and R-CALF) filed their FACA claims.”

For more

The New Civil Liberties Alliance posted a video of NCLA lead attorney Harriet Hageman addressing R-CALF members about the lawsuit at their annual convention. Watch it at https://www.youtube.com/watch?v=_QkOlJs5Q7c&feature=youtu.be.

For more about the NCLA and the R-CALF lawsuit in Wyoming’s U.S. District Court, go to https://nclalegal.org/.