For Immediate Release: May 17, 2021
Contact: R-CALF USA CEO Bill Bullard
Phone: 406-252-2516; firstname.lastname@example.org
Billings, Mont. – Last week the federal district court in Wyoming dismissed the case filed by R-CALF USA, South Dakota ranchers Kenny and Roxy Fox, and Wyoming ranchers Tracy and Donna Hunt that alleged the U.S. Department of Agriculture (USDA), through its subagency, the Animal and Plant Health Inspection Service (APHIS), had violated the Federal Advisory Committee Act (FACA) in the agency’s effort to mandate radio frequency identification (RFID) eartags on all adult cattle moved interstate.
The court determined the documents provided by APHIS, which purport to comprise the agency’s entire official record of its actions, were insufficient to prove that APHIS unlawfully established and utilized two committees that helped the agency address certain technical and logistical issues necessary to enable APHIS to implement its goal of a mandatory RFID system.
Harriet Hageman, Senior Litigation Counsel for the New Civil Liberties Alliance, represented R-CALF USA and the ranchers in this case by filing an initial complaint in October 2019 alleging that APHIS’ pronouncement that it would mandate RFID by 2023 was unlawful. APHIS promptly withdrew its mandate and the court determined the controversy was over.
However, the initial complaint’s second allegation, that APHIS had violated FACA through its use of committees consisting of RFID eartag manufacturers and other RFID advocates remained unaddressed. NCLA filed an amended complaint in April 2020 focusing exclusively on APHIS’ use of those committees.
Meanwhile, as the amended complaint proceeded, APHIS in July 2020 issued a formal notice in the Federal Register announcing it was reinstating its RFID mandate with an effective start-date of January 2023. The New Civil Liberties Alliance, R-CALF USA, and others filed comments in opposition to APHIS’ notice arguing the notice itself was unlawful.
This action was then followed by legislation introduced by Wyo. State Representative Chip Neiman and Wyo. State Senator Cheri Steinmetz to preserve for Wyoming ranchers the flexibility to choose among the various lawful means of identifying their cattle when shipped interstate, including but not limited to RFID eartags. The Wyoming legislation was signed into law in March 2021.
On March 23, 2021, APHIS withdrew its 2020 notice by formally announcing the agency would not proceed to implement its second attempt to mandate RFID technology.
As a direct result of the initial 2019 lawsuit filed by Harriet Hageman on behalf of R-CALF USA and the individual ranchers, as well as the events that unfolded while their amended lawsuit was proceeding, APHIS has now acknowledged that it cannot mandate RFID technology to the exclusion of all the other lawful means of animal identification unless the agency first follows its lawful rulemaking process.
The amended lawsuit dismissed by the court sought to prohibit APHIS from using the work product of the two committees should the agency proceed with future efforts to mandate RFID. As a result of the dismissal, and unless the case is appealed, APHIS is free to use whatever work product it obtained from the committees should it embark on a future rulemaking process regarding the use of RFID technology.
According to Harriet Hageman, “the Court has acknowledged that APHIS was actively involved with identifying the need for and the operations and activities of both the CTWG and PTC. We were therefore disappointed that it then concluded that APHIS did not technically “establish” or “utilize” these committees. We are assessing the options available to continue our efforts to block APHIS from using the “fruit of the poisonous tree” (e.g., the Committees’ work product) in any future effort to force livestock producers to use RFID eartags.”
“This case demonstrates how critically important it is for independent cattle producers to have a watch dog organization protecting them from federal agency overreach. It’s clear that if we hadn’t acted as we did nearly two years ago, our industry would still be facing a federal RFID mandate beginning January 1, 2023. As it is, we have protected the rights of cattle producers by forcing the USDA to follow the law,” said R-CALF USA CEO Bill Bullard.
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R-CALF USA (Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America) is the largest producer-only lobbying and trade association representing U.S. cattle producers. It is a national, nonprofit organization dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. Visit www.r-calfusa.com or, call 406-252-2516 for more information.