NCLA seeks motion to block RFID mandate

Motion asks judge to require USDA to make more robust effort at notifying states and others that RFID mandate has been withdrawn.

March 2, 2020

3 Min Read
NCLA seeks motion to block RFID mandate

The New Civil Liberties Alliance (NCLA) has filed a supplemental motion to block ongoing efforts from the U.S. Department of Agriculture and its Animal & Plant Health Inspection Service (APHIS) to mandate the use of radio-frequency identification (RFID) tracking technology on livestock.

This latest filing asks Nancy D. Freudenthal, U.S. district judge for the District of Wyoming, to revisit the court order she recently issued in R-CALF et al. vs. USDA et al., which dismissed the lawsuit after she concluded that the agencies had fully withdrawn their previous efforts to require livestock producers to use RFID ear tags.

In her Feb. 13 order, Freudenthal found that the case was now moot because USDA and APHIS had responded to NCLA’s lawsuit by withdrawing the unlawful guidance “factsheet” and removing it from the agency's website. Her order made it clear that she believed USDA’s factsheet and underlying policy had been fully and completely withdrawn, and she also emphasized that the agencies have “unambiguously stated that the requirements of the 2019 factsheet will not be implemented.”

Nevertheless, NCLA recently found an “informational page” nearly identical to the earlier factsheet that was published in the February 2020 edition of Nebraska Cattleman magazine announcing that RFID ear tags will become mandatory, albeit through a phased approach. The informational page is on USDA/APHIS letterhead, and it states that it is funded by those agencies pursuant to a cooperative agreement with the Nebraska Department of Agriculture.

Related:USDA moves to dismiss lawsuit over RFID mandate

NCLA said this announcement “confirms that NCLA was rightly concerned that USDA/APHIS had failed to issue and publish an effective retraction of the 2019 factsheet and that there remains substantial confusion and uncertainty in the industry.” NCLA’s latest motion asks the judge to reopen the case for the purpose of issuing a declaratory judgment and ordering the agencies to make a more robust effort at notifying states and others that the RFID mandate has been withdrawn.

“The old adage ‘actions speak louder than words’ rings true here,” NCLA litigation counsel Kara Rollins said. "The agencies successfully mooted this case by unambiguously stating that the 2019 factsheet’s mandates will not be implemented, but new evidence shows that they have failed to follow through on that promise. The agencies should be held to the same standard to which courts hold ordinary Americans. USDA/APHIS should say what they mean, mean what they say and follow through with actions that put their words into effect.”

Related:RFID animal tag requirements challenged in court

NCLA filed a motion with the court the prior week to allow R-CALF USA and the ranchers affected by the agencies’ actions to proceed with discovery and to block USDA and APHIS from using any work product, reports or materials generated by one or more advisory committee(s) they had convened in violation of the Federal Advisory Committee Act. NCLA argued that such a move was necessary to ensure that any future efforts to adopt the RFID requirement are not tainted by such materials.

“We must remain vigilant in monitoring the USDA and APHIS to ensure that neither they nor state agencies are able to avoid complying with the law if they seek to move forward with imposing RFID requirements on our livestock producers. Had these agencies made an effort to effectively inform the public and their state partners that they had withdrawn the factsheet and the RFID mandate, we could have avoided this situation,” NCLA senior litigation counsel Harriet Hageman said.

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