In a 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 USDA regarding its mandate of radio frequency identification eartags. 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.

USDA and the Animal and Plant Health Inspection Service set up two advisory committees to assist their RFID efforts, the Cattle Traceability Working Group and the Producer Traceability Council. As filed by the New Civil Liberties Alliance in the U.S. District Court for the District of Wyoming, the plaintiffs argue that USDA and its subagency, APHIS, failed to comply with FACA’s statutory requirements in establishing and using the two advisory committees to gather information necessary to implement RFID eartags.  

In April 2019, APHIS issued a mandate to U.S. cattle producers to RFID 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 (CTWG), formed in late 2017; or its successor, the Producers Traceability Council (PTC), 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,” R-CALF says.   

NCLA claims USDA’s own documents demonstrate that FACA applies in this case (1) the agency urged the formation of CTWG; (2) numerous APHIS employees actively participated in CTWG’s and PTC’s meetings and calls; (3) CTWG’s fixed membership included APHIS officials; (4) CTWG and PTC—and their various subgroups—met regularly and made a series of recommendations to APHIS regarding the implementation of the RFID technology.  

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.

NCLA represents the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota. 

NCLA is asking the court to recognize the CTWG and PTC as federal advisory committees set up by USDA. To penalize USDA for not following FACA’s public meeting and balanced membership requirements, NCLA is further asking the court to prohibit Defendants from using any of the work product or recommendations made by either CTWG or PTC.   

“USDA and APHIS are required to comply with the law, including FACA. In 2019 they sought to unilaterally nullify the 2013 Final Rule on animal identification and traceability by issuing a ‘factsheet’ that blatantly disregarded the APA’s rulemaking requirements. We now know that the “Factsheet” resulted from the efforts of two unlawfully created advisory committees,” says Hageman of NCLA. “To make sure that Defendants are not rewarded for their misbehavior, they must not be allowed to rely on work product and recommendations made by the CTWG and PTC.”