Watch:
NCLA Case Video Takes on USDA’s Use of “Guidance” as Law Against America’s
Ranchers
R-CALF USA, et al. v. U.S.
Department of Agriculture, et al.
Washington, DC
(February 18, 2021) – Government agencies are not
supposed to be above the law. But a video released today by the New Civil
Liberties Alliance featuring the case R-CALF
v. U.S. Department of Agriculture, et al. shows how the U.S.
Department of Agriculture (USDA) and its subagency, the Animal and Plant Health
Inspection Service (APHIS), seem to operate. These agencies violated the
Federal Advisory Committee Act (FACA) and the Administrative Procedure Act
(APA) in their attempt to unlawfully require America’s ranchers to implement
“radio frequency identification” (RFID) eartags through a two-page “Factsheet”
posted on the agency’s website without any prior warning.
Not only did defendants violate FACA and the APA, they violated their
own regulations as set forth in the 2013 Final Rule on animal
identification and traceability. 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. Defendants’ unlawful RFID mandate is just the
latest effort to try to prevent cattle producers from using those tried-and-true
animal identification methods (e.g.,
tattoos, backtags, metal eartags, brands, and group/lot ID numbers) that until
now had been perfectly acceptable.
Defendants responded to NCLA’s lawsuit by immediately withdrawing their RFID
mandate, thereby conceding that it was not only improvidently issued, but that
it could not be defended in court. They may well now find themselves having to
admit that they also failed to follow FACA’s procedural requirements when they
developed their RFID mandate—mostly because they wrongly assumed that they
should not have to.
While USDA and APHIS have withdrawn their “Factsheet” and their mandatory RFID
requirement along with it, the fact remains they violated numerous laws and
regulations when they attempted to force compliance with a mere “guidance”
document in the first place.
NCLA represents the trade association 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—in their lawsuit
against USDA/APHIS.
Excerpts from the
video:
“NCLA is committed to
stopping these federal agencies when they attempt to circumvent the law. We
must remain vigilant in monitoring the USDA, APHIS, and state and tribal
agencies as they seek to move forward with RFID requirements against our
livestock producers. We really owe it to our American ranchers.”
— Harriet Hageman,
Senior Litigation Counsel, NCLA
“Our organization actively
participated in the government proceeding that resulted in the 2013 final rule.
The final rule was designed to protect the rights of independent livestock
producers by allowing them to continue using the low-cost technologies in order
to comply with the identification and traceability requirements. A shift like
this in policy would be catastrophic to the U.S. livestock industry. And that’s
why we reached out to the New Civil Liberties Alliance for help.”
— Bill Bullard, CEO,
R-CALF USA
For more information
about this case visit here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil
rights group 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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