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Cattle Producers to Court: RFID Mandate Not Resolved
USAgNet - 02/11/2020

The attorney for R-CALF USA and several individual rancher-plaintiffs, who alleged in October that the U.S. Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) violated U.S. law by attempting to force RFID technology upon the entire U.S. cattle industry, filed a response to the agencies' motion to dismiss.

The lawsuit, filed on Oct. 4, 2019 by Harriet Hageman, Senior Litigation Counsel for the New Civil Liberties Alliance, alleged that the agencies' April 2019 notice to discontinue all other forms of official animal identification by January 1, 2023 and begin mandating the exclusive use of radio frequency identification (RFID) eartags and premises registration going forward was a blatant example of unlawful government overreach.

Three weeks after the lawsuit was filed, the agencies, after having already removed their mandate from their official Website in response to the suit, posted a statement indicating the RFID mandate was no longer representative of the agencies' current policy.

The agencies then rejected R-CALF USA's settlement proposal which sought to provide assurances for the U.S. cattle industry that the agencies would not repeat their unlawful actions. That settlement proposal also sought to ensure the agencies would not proceed with their stated goal of eliminating all other forms of official animal identification. The proposal also sought to stop the agencies from using materials and information provided by committees that were unlawfully formed to support the agencies' single-minded approach to animal disease traceability.

Instead of responding to the settlement offer the agencies moved forward with filing a motion to dismiss, claiming the lawsuit was now mooted by the withdrawal of the RFID mandate.

Hageman informed the court this week that the agencies' mere withdrawal of the unlawful mandate, along with their insistence that it did not violate U.S. law, is insufficient to resolve the continued threat the agencies pose to the statutory and regulatory rights and privileges of independent U.S. cattle producers. Hageman also informed the court that the agencies' use of the "tainted" committees is cause for concern and that the livestock producers should be allowed to conduct discovery to find out what happened here.

According to R-CALF USA CEO Bill Bullard, the agencies' position is that because they have temporarily pulled back on pursuing an unlawful RFID mandate that the court should now "trust them." They claim that such trust is warranted because they promise to seek "industry input" when they pursue this same policy in the future. But, he said the agencies' violations run far deeper than their unlawful attempt to burden independent cattle producers with a costly RFID mandate, and the implications for the cattle industry are serious.

"It's important for producers to know that had we not stopped this mandate then cattle producers who are now voluntarily using RFID technology in return for market premiums would see those premiums evaporate as soon as the entire industry was forced by the government to give up all other forms of animal identification."

Hageman notes that this case is important from the standpoint of preventing federal agencies from circumventing the Administrative Procedure Act and violating the law to try to impose costly and likely unworkable requirements on the livestock industry.

"What we have so far learned in this case is that when independent cattle producers organize and step to the plate to defend and protect their rights, they can be successful," said Bullard.

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