wher is the nation’s cattle herd is a question that could have traceability ramifications for food safety, or maybe more commonly for tracking dreaded animal diseases.

The USDA’s Animal Plant and Health Inspection Service (APHIS) has picked at the issue for some time. In 2013, its final rule on “Traceability of Livestock Moving Interstate” came up with “official identification and documentation necessary for the interstate movement of certain types of livestock.”

The 2013 final rule did not require the use of any new technology, which was opposed then and opposed now by many cattle and bison producers. They want to stick with old ways like branding, non-Radio Frequency Identification (RFID) ear-tags, tattoos, group or lot identification numbers, and backlogs, but nothing involving chips or electronic signals.

The world, however, did move on, and RFID ear-tag technology has increasingly become the standard for livestock crossing borders in the developed world of international trade.

Last year, the U.S. Department of Agriculture posted a “factsheet,” suggesting it, too, was moving to RFID standards and phasing out the older methods of animal identification.  On Oct. 4, 2019, the Billings, MT-based Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) along with some individual ranchers, sued the USDA over the fact sheet.

They claimed the 2019 factsheet was not adopted or issued pursuant to a formal notice-and-comment rulemaking procedure under the Administrative Procedure Act (“APA”) and was not published in the Federal Register. 

But then an unusual thing happened.   

On Oct. 25, 2019, three weeks after plaintiffs filed their lawsuit, APHIS posted a statement on its website announcing that it had removed the April 2019 factsheet from its website, stating it was “no longer representative of current agency policy.” 

The U.S. District Court for  Wyoming dismissed the R-CALF lawsuit as moot on Feb. 13, 2020, because the factsheet was withdrawn. As late as Nov. 16, 2020, Judge Nancy D. Freundenthal seemed likely to leave it in the court’s dead letterbox, but she did allow R-CALF 14 days to come up with “extremely limited” extra-record materials about the issue of a Federal Advisory Committee Act (FACA) claim that R-CALF filed.  

On that opening for the plaintiffs, the New Civil Liberties Alliance has filed an amended complaint asking the Wyoming federal court to add nine documents to the Administrative Record in the case of R-CALF, et al. v. USDA, et al.

The amended complaint seeks consideration of extra-record evidence and challenges USDA’s alleged violation of both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) by establishing and utilizing two separate advisory committees to provide recommendations for implementing the RFID  ear-tags, but failing to follow the proper procedures for doing so.

New Civil Liberties Alliance claims APHIS established the “Cattle Traceability Working Group” in 2017 of which NCLA client Kenny Fox was a member.

The Alliance alleges that upon discovering that the CTWG was not producing the pro-RFID recommendations they desired, certain CTWG members sought to exclude anyone who opposed mandatory RFID from further participation, eventually starting a second advisory committee called the “Producer Traceability Council” or PTC.

“High-level USDA employees were actively involved with both the CTWG and PTC, but failed to follow the requirements of FACA by, among other things, ignoring public notice requirements and blocking the participation of those opposed to RFID requirements,” the amended complaint adds.  

“Mr. Fox and other cattle producers who oppose mandating RFID ear-tag use have been entirely excluded from PTC membership, with only pro-RFID individuals and companies — such as electronic ear-tag manufacturers — being allowed to participate.”

The plaintiffs said the nine documents it has asked the court to add to the lawsuit are crucial to “showing that USDA ‘established’ and ‘utilized’ the CTWG and PTC as advisory committees in the development of the 2019 Factsheet and policy to move forward with mandating cattle and bison producers to use RFID ear-tags.”

Further, the plaintiffs said that USDA’s “briefs filed to date suggest that it will defend itself against R-CALF’s FACA claims by asserting that the Act is inapplicable to USDA’s interactions with the two advisory committees.”

 “Our battle against USDA’s unlawful push to force livestock producers to use RFID ear-tags continues. Our latest efforts are designed to ensure that the court has a full record on which to evaluate our FACA claim against USDA” said Plaintiff attorney Harriet Hageman. 

“While USDA has sought to avoid its obligations under FACA and the APA, we will keep moving forward to demand accountability and transparency in order to protect the constitutional and property rights of livestock producers throughout the country.”