WASHINGTON – Rancher groups filed an opening brief in a federal lawsuit that accuses the US Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) of unlawfully using its advisory committees to advance implementation of radio frequency identification (RFID) tags to manage livestock.

Harriet Hageman, senior litigation counsel for the New Civil Liberties Alliance (NCLA), filed the brief in federal district court in Wyoming.

In April 2019, USDA released a fact sheet explaining the agency’s plan to transition to RFID tags from metal ear tags for cattle and bison. The rationale behind the move is to enhance animal health officials’ ability to locate specific animals during a disease outbreak. The agency argued that an electronic ID system could reduce the number of animals involved in disease investigations and ensure animal movements from affected areas happen quickly while protecting other stakeholders in the chain.

USDA planned to implement the transition starting Dec. 31, 2019, with full implementation of the plan completed by Jan. 1, 2023.

But R-CALF challenged the plan in federal court. The group’s lawsuit said USDA lacked the legal authority to mandate RFID use and issued the plan without allowing time for public comment and without publishing it in the Federal Register. The lawsuit also accused the agency of violating the Federal Advisory Committee Act (FACA), which requires federal agencies to follow certain protocols around establishing and utilizing advisory committees.

By October 2019, USDA-APHIS decided to shelve the plan after listening to producer feedback, and in February 2020, the agency filed a motion to dismiss the lawsuit. The court did dismiss the case but allowed lawyers for R-CALF to file an amended complaint alleging the USDA violated FACA by failing to comply with FACA’s procedural requirements and failing to ensure advisory committee membership was “fairly balanced in terms of the point of view represented.”

“Defendants recognized that a smooth transition to mandatory RFID technology would require input from all segments of the livestock industry to assist with a wide variety of practical and logistical issues — such as selecting a uniform technology for RFID devices,” the court document states. “Defendants therefore decided that it would be best to establish and utilize an advisory committee (consisting of USDA/APHIS personnel and representatives of the livestock industry) to assist them with that transition effort.

“They also realized that creating an advisory committee might serve to minimize widespread opposition to mandatory RFID among livestock producers.”

Kenny Fox, a rancher and a plaintiff in the case, served on the USDA-established Cattle Traceability Working Group (CTWG) until several other committee members complained the CTWG was unable to reach consensus on an RFID requirement because of Fox and other members who opposed a mandatory RFID system.

The brief goes on to say that the CTWG “morphed” into a second USDA advisory committee called the Producers Traceability Council (PTC) in the spring of 2019. The PTC was formed by excluding Fox and other opponents of mandatory RFID but the “...same APHIS officials who served on the CTWG continued to serve on the PTC, as did ear tag manufacturing representatives and other RFID advocates.”

R-CALF USA and the other plaintiffs in the lawsuit want to bar APHIS from using the recommendations and work products generated by the advisory committees to implement mandatory RFID.