R-CALF USA v. United States Department of Agriculture, et al.
Federal agencies have exponentially expanded their authority by engaging in the common-place tactic of issuing informal interpretations, fact sheets, and other forms of “guidance,” the practical outcome of which is to surreptitiously force the regulated community to comply with a variety of “policy positions” that are not legally mandatory. The agencies, in other words, use these guidance documents to make law.
The United States Department of Agriculture (“USDA” or “Department”) and the Animal and Plant Health Inspection Service (“APHIS”) have taken this “guidance-is-law” ploy to an entirely new level earlier this year, attempting to replace a properly-adopted regulation related to animal identification with an entirely new and costly approach, all of which was done under the auspices of a two-page “Factsheet.”
The USDA and APHIS, however, cannot enforce animal identification requirements without formal rulemaking. They in fact undertook that process throughout 2011 and 2012, and in 2013 issued the “Traceability for Livestock Moving Interstate” regulation (78 Fed. Reg. 2040). That rule confirmed that cattle and bison producers could use a variety of identification techniques for their livestock, including brands, tattoos, eartags, group identification numbers, and backtags. That rule actually prohibited States and Tribes from requiring livestock producers to use what is known in the industry as “radio frequency identification” or “RFID.” Earlier this year, however, the USDA and APHIS reversed course, and issued a “Factsheet” entitled “Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison.” That so-called Factsheet now mandates that those producers who seek to sell across state lines are required to tag their livestock with RFID eartags.
Under the 2013 rule, our livestock producers have the right to market and sell their cattle and bison so long as they use one of the approved forms of identification – an identification program, by the way, that has worked extremely well for over 100 years. Under the new RFID-only program, our livestock producers will be prohibited from selling their cattle and bison interstate unless they adopt and implement 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. The RFID pronouncement actually nullifies the 2013 final rule, while imposing additional costs of $ 1-2 billion dollars on the industry.
NCLA represents R-CALF USA (the country’s largest producer-only membership-based organization representing cattle producers on domestic and international trade and marketing issues), as well as cattle producers from Wyoming (Tracy and Donna Hunt) and South Dakota (Kenny and Roxy Fox), challenging the Agencies’ use of guidance to repeal the protections and certainty provided for in the 2013 final rule.
This case is not about identification and traceability of livestock in order to protect our food supply. We already have that. It is about Agencies who believe that they are above the law.
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CASE START DATE:
October 4, 2019
United States District Court for the District of Wyoming
United States District Court for the District of Wyoming
Oct 4, 2019 | Petition for Review of Agency Action and Complaint for Declaratory Judgment and Injunctive Relief
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October 4, 2019 | Exhibits to Petition - As Filed With The Court
USDA Withdraws Unlawful RFID Guideline After NCLA Files Lawsuit
WASHINGTON, DC — The New Civil Liberties Alliance is pleased that USDA’s Animal and Plant Health Inspection Service (APHIS) has announced that it does not currently intend to implement the Radio Frequency Identification (RFID) guidelines after NCLA filed a complaint against the agency on Oct. 4, 2019 in the federal district court in Casper, Wyo.
NCLA’s complaint challenged USDA’s April 2019 RFID guidelines entitled, “Factsheet Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison,” alleging that the agency had acted beyond the scope of its legal authority by adopting regulatory guidance that contradicts the animal identification rule issued in 2013.
APHIS quietly removed the guidance document outlining the type of identification devices that USDA-APHIS would regard as official eartags and the dates by which they must be applied to cattle from its website last week without prior notice after they were served with NCLA’s lawsuit. APHIS issued a press release on its website stating that the document “is no longer representative of current agency policy.” The agency also stated that it had listened to the livestock industry’s feedback and that it will “revisit the guidelines.”
The decision also comes on the heels of recent Executive Orders from President Trump that created new, stricter requirements for issuing guidance. Since July of 2018, NCLA has filed 21 anti-guidance petitions requesting that federal agencies stop promulgating and enforcing guidance that purports to legally bind individual Americans and small businesses.
“USDA knew from the outset that it did not have the legal authority to impose an RFID-only system on our livestock industry. Upon being challenged by NCLA it appears that it may be reversing course, only recently announcing that it is withdrawing its RFID requirements. I want to thank our clients for being willing to stand up to the federal government and protect the rights of all of our producers.” –Harriet Hageman, Senior Litigation Counsel
NCLA represents the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota, who are challenging the guidelines for violating current traceability regulations, the Administrative Procedure Act (APA), the Federal Advisory Committee Act (FACA) and the Regulatory Flexibility Act (RFA).
Visit Case Summary page here.
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.
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Hamburger Group Sues to Protect Cattle Ranchers from USDA’s Unlawful RFID Animal Identification Mandate
Washington, D.C.–The New Civil Liberties Alliance today filed a complaint with the District Court of Wyoming against the United States Department of Agriculture (USDA) and the Secretary of Agriculture Sonny Perdue, as well as the Animal and Plant Health Inspection Service (APHIS) and USDA Administrator for APHIS Kevin Shae. NCLA is asking the Court to stop USDA from enforcing the Radio Frequency Identification (RFID) mandate and the agency’s requirement that cattle producers obtain a premises identification number (PIN) for bison and cattle moving across state lines because these agencies have acted beyond the scope of their legal authority to adopt regulatory guidance and in violation of the animal identification rule issued in 2013.
NCLA represents the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota, who are challenging the mandate for violating current traceability regulations, the Administrative Procedure Act (APA), the Federal Advisory Committee Act (FACA) and the Regulatory Flexibility Act (RFA).
The 2013 Final Rule was designed to protect producers’ right to use low-cost technologies related to animal identification and traceability that have been used for generations and are both flexible and adaptable. But just six years later, the 2019 RFID mandate requires the least flexible and costliest identification methodology available. The mandate forces cattle producers to put the RFID ear tags on livestock destined for market and to do away with animal identification options that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification. The complaint also takes issue with the fact that the agencies established one or more “advisory committee(s)” without complying with the requirements of FACA including the exclusion of groups or parties who are opposed to the RFID Plan.
NCLA released the following statements:
“Forcing livestock producers to adhere to an RFID program will unlawfully deny them access to interstate markets. USDA and APHIS are seeking to mandate compliance with mere guidance. Threatening such unlawful enforcement violates the Constitution and our clients’ Constitutional rights. NCLA is committed to stopping federal agencies from circumventing the law.” – Harriet Hageman, NCLA Senior Litigation Counsel
“This case is a perfect example of the Administrative State flexing its regulatory muscle unlawfully. USDA’s 2013 Final Rule specified the requirements for the official identification of livestock for interstate movement. Now USDA and APHIS want America’s ranchers to disrupt their operations and comply with a new mandate that has not gone through proper channels. USDA cannot replace regulation with contradictory guidance.” – Mark Chenoweth, NCLA Executive Director and General Counsel
See the full case summary here.
ABOUT NCLA NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
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President Trump Rightfully Orders Agencies to be Transparent and Fair; USDA Should be the First to Comply
Originally published in the Tri-State Livestock News on October 9, 2019
Written by Harriet Hageman, Senior Litigation Counsel at the New Civil Liberties Alliance