Group Seeks To Add to R-CALF’s Suit Over RFID

A new nonprofit civil rights group has filed a lawsuit challenging USDA’s attempts to implement mandatory use of “radio frequency identification” (RFID) eartags for cattle and bison.

The New Civil Liberties Alliance has filed a motion asking the U.S. District Court for the District of Wyoming to add nine documents to the Administrative Record in the case of R-CALF, et al. v. USDA, et al. The suit 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  eartags, but failing to follow the proper procedures for doing so.

According to a statement issued by New Civil Liberties Alliance, USDA’s Animal and Plant Health Inspection Service (APHIS) established the “Cattle Traceability Working Group” in 2017 of which NCLA client Kenny Fox was a member.

NCLA 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 participation of those opposed to RFID requirements,” NCLA’s statement says. “Mr. Fox and other cattle producers who oppose mandating RFID eartag use have been entirely excluded from PTC membership, with only pro-RFID individuals and companies (such as electronic eartag manufacturers) being allowed to participate.”

NCLA 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 eartags.”

NCLA further 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.”

NCLA’s senior litigation counsel Harriet Hageman said, “Our battle against USDA’s unlawful push to force livestock producers to use RFID eartags continues.  Our latest efforts are designed to ensure that the Court has a full record on which to evaluate our FACA claim against USDA. 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.”