Ranch group files opening brief in RFID case

On Feb. 8 in the Wyoming federal district court, Harriet Hageman, Senior Litigation Counsel for the New Civil Liberties Alliance, filed an opening brief related to R-CALF USA’s Federal Advisory Committee Act lawsuit against the U.S. Department of Agriculture. In addition to R-CALF USA, Wyoming ranchers Tracy and Donna Hunt and South Dakota ranchers Kenny and Roxy Fox are plaintiffs in the case.

In April 2019, the USDA’s veterinary subagency, the Animal and Plant Health Inspection Service, issued a mandate to U.S. cattle producers to use radio frequency identification eartags on all adult cattle moved interstate beginning January 2023. The mandate included a requirement that cattle producers register their premises with the government.

R-CALF USA and the other rancher-plaintiffs sued on the grounds the mandate was unlawful and it undermined existing law that allows cattle producers to choose among various lower-cost technologies, including metal eartags, when moving cattle interstate. Just weeks after the lawsuit was filed, APHIS withdrew its mandate.

But the original case alleged that APHIS also violated another law, the Federal Advisory Committee Act, which requires federal agencies to follow certain protocols when establishing and utilizing advisory committees to ensure both government transparency and a balanced perspective among advisory committee members.

The opening brief addresses the plaintiffs’ FACA claims and contends that since late 2017, APHIS established and utilized two unlawful advisory committees to assist it in transitioning the U.S. cattle industry to exclusively use RFID eartags when moving adult cattle interstate, and to reduce cattle-producer opposition to the agency’s plan.

The latest brief points out that defendants (USDA and APHIS) have never asserted that they followed lawful protocols and achieved balance on the advisory committees, but that they instead argue that they neither established nor utilized either the Cattle Traceability Working Group, formed in late 2017; or its successor, the Producers Traceability Council, formed in early 2019.

The opening brief states that the defendants’ denials are disingenuous, citing to scores of emails, working papers, meeting minutes, news releases, and an APHIS strategy paper as evidence the agency both established the two advisory committees and then utilized them up to October of 2019, which was when the plaintiffs first filed their lawsuit against APHIS’s mandatory RFID plan.

According to the opening brief, plaintiff Kenny Fox was invited to serve on the CTWG until several members complained the CTWG was unable to reach consensus to push forward with an RFID requirement. Consequently, the PTC was formed by excluding Fox and others who opposed a mandatory RFID system from its membership. Yet, the same APHIS officials who served on the CTWG continued to serve on the PTC, as did eartag manufacturing representatives and other RFID advocates.

R-CALF USA and the other plaintiffs are seeking an injunction from the court barring APHIS from using the advice and work products it received from the advisory committees as the agency forges ahead to deny cattle producers the choice to use various low-cost technologies as authorized in current law.