Plaintiffs’ Exhibits

Washington, DC (September 19, 2022) – Ranchers and livestock owners are taking the U.S. Department of Agriculture (USDA), its subagency, the Animal and Plant Health Inspection Service (APHIS), and the heads of those agencies to the Supreme Court over the government’s effort to phase out the use of metal eartags, brands, backtags, and similar low-cost means of identifying livestock. Today, the New Civil Liberties Alliance filed a petition for a writ of certiorari with the U.S. Supreme Court in R-CALF USA v. USDA, asserting that APHIS failed to comply with statutory requirements in the Federal Advisory Committee Act (FACA) when it established two advisory committees and that the Tenth Circuit let APHIS off the hook based on an unduly confined interpretation of “established” that would gut FACA. U.S. courts of appeals have issued sharply conflicting decisions on the issues presented in this case—warranting Supreme Court review to resolve the split in authority.

NCLA argues that APHIS formed the “Cattle Traceability Working Group” (CTWG) and “Producer Traceability Council” (PTC) as federal advisory committees in 2017 and 2019, respectively, to assist in the development of the unlawful mandate requiring radio frequency identification (RFID) eartags to trace livestock. APHIS devoted significant resources to convince livestock industry representatives of the need for an advisory committee and to spell out the proposed committee’s agenda. APHIS “established” CTWG (and its successor PTC) under any common understanding of that word, and within the meaning of FACA. The district court and the Tenth Circuit held otherwise, based not on any disagreement about the factual record but on their unusually narrow constructions of the word “established.” That interpretation directly conflicts with an Eleventh Circuit decision and is in considerable tension with the Supreme Court’s decision in Public Citizen v. U.S. Department of Justice. 

NCLA’s petition raises an issue of exceptional importance. A key contested issue in a large percentage of FACA cases is whether a group is a FACA “advisory committee” that was “established” by the President or a federal agency—and thus subject to FACA constraints. The Tenth and Eleventh Circuit Courts of Appeals disagree regarding when the President or an agency should be deemed to have “established” a FACA advisory committee. And the Supreme Court’s decision in Public Citizen strongly suggests that “established,” as used in FACA, should be interpreted as taking its ordinary meaning—or if anything a broader sense, not a narrower one. 

The factual evidence is overwhelming that APHIS played the major role in creating the advisory committees. The decisions below, however, provide APHIS and all other federal agencies with a roadmap for evading FACA in the future. The Act imposes important procedural and transparency requirements on federal advisory committees to ensure they operate in an open, fair, and transparent manner. But according to the Tenth Circuit decision, agencies like APHIS that find the FACA requirements burdensome now have an easy means of evading them by just setting up the committee and then skipping its initial meeting. Supreme Court review is warranted to determine whether Congress intended that FACA be construed so narrowly as to render it toothless.

NCLA released the following statements: 

“FACA was adopted to ensure transparency and accountability whenever government agencies seek to empower outside groups to develop public policies and mandates. APHIS clearly established the CTWG and PTC to further its goal of forcing our livestock producers to use RFID eartags, while pretending that such requirements were industry driven. The Supreme Court needs to ensure that FACA is enforced as written and as intended.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

“FACA imposes important procedural requirements on federal advisory committees to ensure they operate in an open and fair manner. When, as here, federal courts overlook noncompliance with those requirements, they increase the danger that administrative agencies will succumb to secret lobbying by powerful special interests.”
— Rich Samp, Senior Litigation Counsel, NCLA

For more information visit the case page here. Watch the case video 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.

Download the full document

Washington, DC (August 26, 2021) – The U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS), continue to violate federal law in their efforts to mandate “radio frequency identification” (RFID) eartags on livestock. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an opening brief in the U.S. Court of Appeals for the Tenth Circuit over these agencies’ violation of the Federal Advisory Committee Act (FACA). The brief asks the Court to declare that USDA and APHIS established and utilized the “Cattle Traceability Working Group” (CTWG) and “Producer Traceability Council” (PTC) in violation of FACA.

In 2017, USDA began efforts to eliminate the use of most of the tried-and-true traceability and identification techniques approved previously as being acceptable for the interstate movement of livestock. In particular, USDA and APHIS concluded that the livestock industry should phase out the use of metal eartags, brands, backtags, and similar low-cost forms of identification, and convert to the exclusive use of expensive RFID eartags, with such a mandate to become effective as of January 1, 2023. These agencies arranged for the creation of the CTWG—and later the PTC—to assist them with that transition effort. FACA, adopted by Congress to further the goals of transparency and fairness, requires any such advisory committees “established” or “utilized” by a federal agency to comply with a wide range of procedural requirements, such as having balanced viewpoints and keeping certain records and making them publicly available.

On May 13, 2021, District Judge Freudenthal erred by ruling in favor of USDA and APHIS and dismissing R-CALF’s FACA claims. NCLA also believes the district court abused its discretion in applying a Local Rule to deny our clients’ repeated requests for discovery. NCLA has requested that the Tenth Circuit enter judgment in favor of R-CALF USA and the four independent ranchers, Donna and Tracy Hunt and Kenny and Roxy Fox, on their claims that the CTWG and PTC are federal advisory committees covered by FACA. To deter future FACA abuse, NCLA also seeks an order from the Tenth Circuit prohibiting the agencies from using any of the work product generated by the CTWG and PTC in future endeavors to force RFID requirements on livestock producers.

NCLA released the following statement:

“USDA and APHIS are well aware that the livestock industry opposes their efforts to mandate the use of high-cost RFID eartags. They created the CTWG and PTC as part of their strategy to circumvent that opposition and to make their astroturf efforts appear to be grassroots. Those efforts violated FACA, and the agencies should be held accountable. We are confident that the Tenth Circuit Court of Appeals will recognize these agencies’ actions for what they were, enjoin them from engaging in such behavior, and prohibit them from using the unlawfully obtained committee work product in their future regulatory activities.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

For more information visit the case page here.

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Washington, DC (April 23, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief in the U.S. District Court for the District of Wyoming, aiming to protect livestock producers’ rights to use traditional low-cost methods related to animal identification and traceability. NCLA’s brief argues that the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS), failed to comply with the statutory requirements of the Federal Advisory Committee Act (FACA).

This case stems from USDA’s actions in setting up two advisory committees to assist in the development of the unlawful USDA mandate requiring “radio frequency identification” (RFID) eartags on livestock. NCLA is asking the Court to recognize the “Cattle Traceability Working Group” (CTWG) and “Producer Traceability Council” (PTC) as federal advisory committees “established” by USDA.

CTWG was formed in 2017 as a result of a months-long lobbying effort by USDA. Documents obtained by NCLA show that during this period, USDA determined that its goal of transitioning to a mandatory RFID regime would be advanced by creating an industry-led task force to provide “technical advice” and support.  CTWG morphed into a second USDA advisory committee, PTC, in the spring of 2019. The transformation served as a way to exclude those like NCLA client Kenny Fox who opposed mandatory RFID requirements.

In December 2020, NCLA filed a motion for completion of the record or for consideration of extra-record evidence, attaching nine incriminating documents proving that USDA both “established” and “utilized” CTWG and PTC. NCLA has since filed two additional motions for completion of the record related to documents produced by APHIS in response to a 2020 FOIA request. The policy advice and recommendations submitted to USDA by CTWG and PTC remain in USDA’s possession today, and USDA continues to move forward with its efforts to require all cattle producers to adopt RFID technology. FACA, however, prohibits federal agencies from using work product and recommendations from advisory committees that operated in violation of FACA procedural requirements. This includes CTWG and PTC, which violated FACA safeguards by ignoring public notice requirements and blocking participation by anyone opposed to RFID mandates.

NCLA has already been successful in forcing USDA to withdraw its two-page factsheet directing livestock producers to use RFID eartags. The controversy, however, remains alive because USDA is moving ahead with plans to mandate RFID for cattle by 2023. A March 2021 news release by USDA stated, “[USDA] believe[s] that RFID tags will provide the cattle industry with the best protection against the rapid spread of animal diseases.” So long as USDA continues to pursue mandatory RFID in violation of the 2013 Final Rule, a live controversy continues to exist because the threat remains that USDA will seek to make use of RFID-related work product and recommendations from advisory committees set up and operated in violation of FACA.

NCLA requests that the Court enter judgment in favor of R-CALF USA and the four plaintiff ranchers on their claims that CTWG and the PTC are federal advisory committees covered by FACA, and that USDA failed to comply with procedures required by FACA for those committees. The Court should also enjoin USDA from using the work product and recommendations solicited from those committees with respect to the implementation of RFID technology for livestock moving interstate.

NCLA released the following statements:

“There is no question that USDA/APHIS violated FACA when they established and utilized two separate advisory committees to provide a veneer of buy-in from the livestock industry for their efforts to force RFID technology on our cattle producers. Their violation of FACA warrants the Court’s prohibiting them from using the work product of those sham committees to support their ongoing efforts to mandate RFID eartags in violation of USDA’s 2013 Final Rule.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

“USDA and APHIS created these committees to try to convince our independent livestock producers that “everyone was on board” with a one-size-fits-all RFID mandate out of Washington, DC. We have exposed their behind-the-scenes shenanigans, and we hope that the Court will not only recognize what these agencies have done, but prohibit them from relying on this tainted committee work to further an agenda that cattle producers flat out oppose.”
— Bill Bullard, CEO, R-CALF USA

For more information visit the case page 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.

Download the full document

Washington, DC (April 14, 2021)– Influenced by a lawsuit brought by the New Civil Liberties Alliance on behalf of America’s livestock producers against the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS), the Wyoming Legislature recently passed HB0229, allowing cattle and bison producers in the state to use a variety of identification methods for their livestock.

In July 2020, USDA sent shockwaves through the livestock industry when it published a notice in the Federal Register proposing to define an “official eartag” under the 2013 Final Rule governing animal identification and traceability as being limited to radio frequency identification (RFID) eartags. The move prohibited the use of low-cost and popular traditional eartags. USDA’s recent activity followed its decision in April 2019 to issue a two-page factsheet or “guidance document” mandating livestock producers to begin using RFID eartags in 2023. NCLA successfully challenged the legality of USDA’s factsheet, thereby forcing the agency to withdraw it in October 2019. Under HB0229, livestock producers in Wyoming can continue using any form of identification referenced in the 2013 Final Rule, including brands, tattoos, metal or plastic eartags, back tags, and group identification numbers.

NCLA, a nonpartisan, nonprofit civil rights group, 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 R-CALF USA, et al. v. U.S. Department of Agriculture, et al. The lawsuit currently pending before the U.S. District Court for the District of Wyoming argues that USDA and APHIS failed to comply with the Federal Advisory Committee Act’s(FACA)statutory requirements in establishing and using two advisory committees to gather information necessary to implement the RFID eartag mandate. If NCLA’s FACA lawsuit succeeds, USDA will not be able to use any of the recommendations or information obtained from the unlawful advisory committees in proposing a new RFID rule.

The passage of HB0229 is the second victory for livestock producers resulting from NCLA’s aggressive legal challenges against administrative agencies that “legislate by guidance,” thereby avoiding the strictures of the Administrative Procedure Act (APA) while imposing ever increasing mandates and requirements on the regulated public. USDA and APHIS announced last month that they will go through a full rule-making process pursuant to APA to make any changes to the 2013 Final Rule governing animal identification and traceability. These agencies have again been forced to abandon their attempt to replace the 2013 Final Rule with guidance, which has been at the root of NCLA’s legal objection.

NCLA released the following statements:

“We are pleased that the Wyoming legislators understand the importance of protecting our livestock producers’ right to choose which form of identification best works for their operations. USDA and APHIS have been relentless in their efforts to force our producers to convert to a costly and complicated RFID eartag program. The passage of HB0229 is now one more roadblock to those efforts. We hope other states will follow suit.”

— Harriet Hageman, Senior Litigation Counsel, NCLA

“We applaud the State of Wyoming for protecting the private property rights of Wyoming ranchers. The law provides that ranchers everywhere can choose to identify their property—their livestock—in the manner that best suits their operations. USDA tried unlawfully to take that choice away. The State of Wyoming has now ensured it won’t happen again.”

— Bill Bullard, CEO, R-CALF USA

For more information visit the case page 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.

Download the full document

Washington, DC (March 23, 2021) – Victory! The New Civil Liberties Alliance is celebrating an important win for America’s ranchers today after the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS) announced that they will go through a full rule-making process pursuant to the Administrative Procedure Act (APA) to make any changes to the 2013 Final Rule governing animal identification and traceability. They will thus abandon their prior attempt to replace the rule with guidance, which has been at the root of NCLA’s lawsuit against the agencies.

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 R-CALF USA, et al. v. U.S. Department of Agriculture, et al.  

In July 2020 USDA/APHIS published a notice in the Federal Register proposing to define an “official eartag” under the 2013 Final Rule governing animal identification and traceability as being limited to radio frequency identification (RFID) eartags, thereby barring the use of traditional eartags used by most livestock producers.

Today’s announcement means that the original notice will not be finalized, and that all current APHIS-approved methods of identification may be used as official identification until a new formal rule dictates otherwise. This is an important concession, and one that would never have been made without NCLA’s challenging the agencies’ previous effort to nullify the 2013 Final Rule through the use of a guidance document (the April 2019 Factsheet mandating RFID use on cattle and bison).

For far too long and far too often, administrative agencies have been “legislating by guidance,” thereby avoiding the strictures of the APA, while imposing ever increasing mandates and requirements on the regulated public. That is exactly what USDA and APHIS tried to do in imposing an RFID mandate on cattle and bison producers via guidance.  NCLA has been aggressive in challenging such extra-legal actions.  The announcement today shows that NCLA is making progress in placing constitutional guardrails on executive branch agencies.

NCLA also filed comments in October of last year pointing out the illegality of what the agencies were attempting to do by circumventing the

Federal Advisory Committee Act (FACA) by excluding opponents of  RFID eartags from USDA’s advisory committee. If NCLA’s ongoing FACA lawsuit succeeds, USDA will not be able to use any of the recommendations or information obtained from the advisory committee in proposing a new RFID rule.

NCLA released the following statements: 

“We are pleased that USDA and APHIS have finally recognized that they cannot cut corners and ignore the APA when it comes to something as important as defining which type of identification will be considered “official” for purposes of moving livestock interstate. Our livestock producers are entitled to the certainty and protections afforded by the 2013 Final Rule, and any effort to change that Rule should be subjected to a robust legal review and analysis. Using unenforceable “guidance” documents is no way to govern.”

— Harriet Hageman, Senior Litigation Counsel, NCLA 

“For the past two years the USDA and APHIS have tried to run roughshod over the rights of America’s cattle producers. We’re cautiously hopeful today’s announcement signals an end to their regulatory overreach and the beginning of respecting both the law and the cattle producers these agencies are charged with supporting.”

— 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.

Download the full document

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.

Download the full document 

Washington, DC (February 9, 2021) – The U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) have violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA). In their attempt to unlawfully mandate “radio frequency identification” (RFID) eartags on livestock destined for market, USDA and APHIS set up two advisory committees to assist their RFID efforts, the “Cattle Traceability Working Group” (CTWG) and the “Producer Traceability Council” (PTC).

An opening brief filed by the New Civil Liberties Alliance in the U.S. District Court for the District of Wyoming argues 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.  NCLA represents the 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, who filed a lawsuit against these agency defendants challenging their illegal April 2019 “guidance” as violating the 2013 Traceability and Identification Rule by attempting to force cattle producers to use RFID eartags in lieu of all other forms of approved identification under the earlier rule.

NCLA’s brief criticizes the Defendants’ decision to establish and utilize “advisory committees” without complying with FACA’s procedural requirements, as well as their decision to exclude from participation anyone who opposed the RFID requirements. Defendants’ mandate, issued in violation of the 2013 Final Rule, was designed to prohibit cattle producers from using any animal identification options that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification numbers.

Defendants have taken the position that they neither “established” nor “utilized” the CTWG and PTC advisory committees within the meaning of FACA. However, their Administrative Record and documents obtained through a FOIA request prove otherwise. Defendants have conceded that they did not follow FACA’s procedural requirements—mostly because they wrongly assumed that they should not have to. Again, however, their 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.

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.

NCLA released the following statement:

“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. 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.”

— Harriet Hageman, Senior Litigation Counsel, NCLA

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.

Download the full document

Washington, DC (December 3, 2020) – The New Civil Liberties Alliance, a nonpartisan nonprofit civil rights group, filed a motion for completion of the record or for consideration of extra-record evidence attaching nine incriminating documents in the U.S. District Court for the District of Wyoming in R-CALF, et al. v. USDA, et al. The lawsuit challenges USDA’s violation of  both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) by establishing and utilizing two separate advisory committees to provide recommendations for implementing the mandatory use of “radio frequency identification” (RFID) eartags, but failing to follow the proper procedures for doing so.

In 2017, USDA’s Animal and Plant Health Inspection Service (APHIS) established the “Cattle Traceability Working Group.” NCLA client Kenny Fox was a member of the CTWG and a vocal critic of its proposals to require RFID eartags. Upon discovering that the CTWG was not producing the pro-RFID recommendations they desired, certain CTWG members sought to exclude anyone who opposed mandatory RFID from further participation, eventually starting a second advisory committee called the “Producer Traceability Council” or PTC. High-level USDA employees were actively involved with both the CTWG and PTC, but failed to follow the requirements of FACA by, among other things, ignoring public notice requirements and blocking participation of those opposed to RFID requirements. Mr. Fox and other cattle producers who oppose mandating RFID eartag use have been entirely excluded from PTC membership, with only pro-RFID individuals and companies (such as electronic eartag manufacturers) being allowed to participate.

The present motion is asking the court to add nine documents to the Administrative Record in this case. All of them are crucial to the issue at hand—showing that USDA “established” and “utilized” the CTWG and PTC as advisory committees in the development of the 2019 Factsheet and policy to move forward with mandating cattle and bison producers to use RFID eartags. The proffered documents enumerate the involvement of the senior USDA officials in creating and orchestrating the CTWG’s recommendations for USDA to adopt a mandatory RFID regime—such as organizing the Strategy Forum in 2017 where CTWG was established and later called “Our [USDA’s] National Forum,” as well as drafting the white paper in the aftermath.

The USDA’s briefs filed to date suggest that it will defend itself against R-CALF’s FACA claims by asserting that the Act is inapplicable to USDA’s interactions with the two advisory committees. It is important for the court to add the proffered documents to the Administrative Record in order to consider them when evaluating the ultimate question of whether USDA violated FACA when establishing and working with these two groups—while also failing to comply with the procedural requirements of the Act.

NCLA released the following statement: 

“Our battle against USDA’s unlawful push to force livestock producers to use RFID eartags continues.  Our latest efforts are designed to ensure that the Court has a full record on which to evaluate our FACA claim against USDA. While USDA has sought to avoid its obligations under FACA and the APA, we will keep moving forward to demand accountability and transparency in order to protect the constitutional and property rights of livestock producers throughout the country.”

— Harriet Hageman, Senior Litigation Counsel, NCLA  

For more information visit the case page 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.

Download the full document

Washington, DC (April 6, 2020) – The New Civil Liberties Alliance, a nonpartisan nonprofit civil rights group, filed an amended complaint today against the U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) for violations of the Federal Advisory Committee Act (FACA). NCLA represents the trade association R-CALF USA (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. This lawsuit seeks to hold USDA and APHIS to its obligations under both FACA and the Administrative Procedure Act (APA) for the agencies’ operation of federal advisory committees that provided recommendations regarding how to implement mandatory electronic identification and traceability of livestock.

In 2017, APHIS established the “Cattle Traceability Working Group.” NCLA client Kenny Fox was a member of the CTWG and a vocal critic of its proposals to require “radio frequency identification” (RFID) eartags. Upon discovering that the CTWG was not producing the pro-RFID recommendations they desired, certain working group members sought to prevent anyone who opposed mandatory RFID from having a voice on the committee and from corresponding with other CTWG members and APHIS. The CTWG was ultimately dissolved in the Spring of 2019 and replaced with the “Producers Traceability Council” (PTC) advisory committee to provide similar recommendations to APHIS. Mr. Fox and other cattle producers who oppose mandating RFID eartag use have been entirely excluded from PTC membership, with only pro-RFID individuals and companies (such as electronic eartag manufacturers) being allowed to participate.

NCLA is challenging USDA’s and APHIS’s failure to comply with FACA’s statutory requirements, among other things, by establishing the advisory committees without first filing a charter and by failing to abide by FACA’s meeting, public access, disclosure, and balanced representation requirements.

NCLA released the following statement:

“The primary beneficiaries of mandatory RFID regulations are the eartag manufacturers and the four large beef packers, with both industries being well represented on the advisory committees at issue here, at the same time that RFID opponents were kept at bay. Even though USDA and APHIS removed the 2019 Factsheet from their website, their efforts to implement the policy might resume. This Court must allow R-CALF and the ranchers affected by the agencies’ actions to proceed with discovery, so that we can uncover the information exchanged, reviewed, discussed, drafted, evaluated, and disseminated by the agencies and the advisory committees in violation of FACA. This review will ensure that any future efforts to adopt the RFID requirement are not unlawfully tainted by such materials.”  —Harriet Hageman, Senior Litigation Counsel, NCLA

Case background:

In 2013 USDA issued a Final Rule confirming that cattle and bison producers need not use RFID eartags and could instead use brands, tattoos, metal eartags, group identification numbers, or backtags. The work of the pro-RFID faction on the advisory committees played a role in drafting the April 2019 “Factsheet” released by the agencies, which purported to require livestock producers who move or sell bison or cattle across state lines to obtain a premises identification number (PIN), and also to outlaw the use of the most common forms of identification. In October 2019, NCLA sued USDA and APHIS in the Federal District Court for the District of Wyoming because the Factsheet violated the 2013 Final Rule, the APA and the FACA.

Last Fall, and within three weeks of being sued by NCLA, APHIS removed the 2019 Factsheet from its website, eventually filing a motion to dismiss claiming that such lawsuit was now “moot.” Judge Nancy D. Freudenthal, the Wyoming federal trial judge assigned to the case, granted the motion in February 2020, finding that the agencies had fully withdrawn not only the Factsheet, but the underlying policy as well.

Nevertheless, NCLA recently found an “informational page” published in the February and March 2020 editions of the Nebraska Cattleman magazine (jointly funded by USDA and the Nebraska Department of Ag) and almost identical to the 2019 Factsheet announcing that RFID eartags will in fact be mandatory in the near future. This discovery confirmed NCLA’s concern that the agencies have failed to issue and publish an effective retraction of the 2019 Factsheet, and that there remains substantial confusion and uncertainty in the industry.

In her order of dismissal, Judge Freudenthal did not address the Plaintiffs’ FACA claim.  NCLA immediately brought this to her attention. She then handed down a modified order giving NCLA until April 6^th to file an amended complaint addressing the issues related to FACA.

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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Washington, DC (February 28, 2020) – The New Civil Liberties Alliance, a nonpartisan nonprofit civil rights organization, has filed a supplemental motion, asking the Court to reopen its case against the U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS). The motion seeks to block ongoing efforts to rely upon an unlawful “guidance” document 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. v. USDA et al., which dismissed the lawsuit upon her concluding that the agencies had fully withdrawn their previous efforts to require livestock producers to use RFID eartags.

In her February 13^th order, Judge Freudenthal found that the case was now moot because the USDA and APHIS had responded to NCLA’s lawsuit by withdrawing the unlawful guidance “Factsheet” and removing it from the agency website. Her order made it clear that she believed USDA’s Factsheet and underlying policy have 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 Factsheet published in the February 2020 edition of Nebraska Cattleman magazine announcing that RFID eartags 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. 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.

NCLA filed a motion with the court last week to allow R-CALF and the ranchers affected by the agencies’ unlawful actions to proceed with discovery and to block USDA and APHIS from using any work product, reports, and materials generated by one or more advisory committee(s) that 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 is not tainted by such materials. 

NCLA released the following statements:

“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.”
– Harriet Hageman, Senior Litigation Counsel, NCLA

“The old adage ‘actions speak louder than words’ rings true here. 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.”
– Kara Rollins, Litigation Counsel, NCLA

See the full case summary page here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights organization 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.

Click here to download

Washington, DC (February 19, 2020) – A court order issued late last week by Nancy D. Freudenthal, U.S. District Judge for the District of Wyoming, dismissed the case of R-CALF et al. v. USDA et al. as moot because the U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) withdrew the offending guidance “Factsheet” from its website that led to the lawsuit. In her order Judge Freudenthal made it clear that USDA’s unlawful Factsheet has been fully and completely withdrawn and stated that it “is not recognized as agency policy,” she also emphasized that “[the agencies have] unambiguously stated that the requirements of the 2019 Factsheet will not be implemented”. The Factsheet had sought to impose radio frequency identification (RFID) tracking technology on livestock producers.

The result marks a win for the New Civil Liberties Alliance, a nonpartisan nonprofit public interest law firm and its clients by (1) preventing USDA from using guidance to supersede a formal rule; and (2) preventing the requirements contained in the unlawful RFID guidance from being reissued. The agencies had targeted livestock producers who move or sell bison or cattle across state lines with a mandate via the Factsheet posted on their website.  That Factsheet created substantial uncertainty in the industry, in large part because it was entirely contrary to the 2013 final rule on identification and traceability of certain livestock. USDA and APHIS withdrew it from their website last October, shortly after NCLA sued them on behalf of R-CALF USA (Ranchers Cattlemen Action Legal Fund United Stockgrowers of America) and several ranchers. The agencies recently argued to the Court that there is no longer any “case or controversy,” since they have withdrawn the RFID policy.

Yesterday evening, NCLA filed a motion with the court to keep open another portion of the original complaint that Judge Freudenthal appears to have overlooked. In addition to seeking repeal of the unlawful guidance, NCLA claimed that USDA and APHIS violated the Federal Advisory Committee Act (FACA) in formulating the RFID guidance. Even though the guidance has been withdrawn, NCLA argues that the process that led to the unlawful guidance being issued may still be probed.

While NCLA applauds the judge’s order confirming that the requirements of the Factsheet will not be implemented, that order does not negate the agencies’ shady behavior in adopting it in the first place. In seeking to expose the underlying actions, NCLA is asking the court to allow it to pursue the claim that the agencies violated the FACA. This move is based on the fact that the agencies improperly established “advisory committees” staffed with “pro-RFID” individuals to develop the unlawful 2019 Factsheet while excluding livestock producers who opposed the RFID requirements. Those advisory committees violated the FACA, which imposes formal requirements on how an agency must involve the public in the rulemaking process.

NCLA’s motion asks the Court to allow R-CALF and the ranchers affected by this unlawful act to proceed with discovery. NCLA will seek to block USDA and APHIS from using any work product, reports, and materials generated by the unlawful federal advisory committee(s) in any future regulatory action around RFID tracking technology.

NCLA released the following statements:

“While we are thankful that the court understood the magnitude of what the agencies did, and we are happy that they withdrew the RFID mandate, we still need to find out how we got here. We must find out the sordid details of why the agencies proceeded as they did to avoid any future nasty and destabilizing surprises.”
– Harriet Hageman, Senior Litigation Counsel, NCLA

“USDA and APHIS acted unlawfully when they issued the RFID guidance. They also appear to have acted unlawfully when they convened one-sided advisory committees in violation of the Federal Advisory Committee Act. NCLA is delighted to have forced withdrawal of the guidance, and we look forward to getting to the bottom of the flawed process that generated it.”
– Mark Chenoweth, Executive Director and General Counsel, NCLA

ABOUT NCLA 

NCLA is a nonpartisan nonprofit civil rights organization 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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WASHINGTON, DC —(February 6, 2020)-The New Civil Liberties Alliance replied to the U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service’s (APHIS) motion to dismiss NCLA’s lawsuit over unlawful an guidance those agencies published mandating the use of radio frequency identification (RFID) technology. The agencies claim that NCLA’s lawsuit on behalf of R-CALF USA (Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America) is no longer necessary simply because the agencies took down the guidance (without admitting to any improper conduct). NCLA’s brief explains why that action is not enough and does not moot the case.

USDA and APHIS sought to impose the RFID mandate in April 2019 by posting a two-page “Factsheet” to their website. That notice required livestock producers who move or sell bison or cattle across state lines to obtain a premises identification number (PIN), a requirement that has been hotly opposed by the industry for years. The notice also outlawed the use of the most common forms of identification such as brands, tattoos, metal eartags, and backtags. The agencies did not go through the proper process that the Administrative Procedure Act (APA) mandates for binding regulations, and they disregarded the impact such an RFID mandate would have on livestock producers throughout the country.

On October 4, 2019, NCLA filed a lawsuit on behalf of R-CALF USA and several ranchers against these agencies for acting beyond the scope of their legal authority by trying to supersede the animal identification rule issued in 2013 with a guidance. Three weeks later the agencies quietly removed the mandate from the official website where it had resided and posted a statement indicating that USDA/APHIS did not intend to implement the RFID guidelines.

Now USDA and APHIS want everyone to pretend there is no case simply because they withdrew a Factsheet from their website. But in their filings before the court, the USDA and APHIS fail to admit wrongdoing or offer any substantive assurance that they will follow the law in the future.

NCLA released the following statement:

“Having now been ‘caught red-handed’ the agencies are seeking not only to avoid accountability for their wrongful acts but also to deprive the judicial branch of its ability to clarify the legal framework within which federal agencies must operate. The Court should allow the matter to proceed to force transparency and accountability upon federal agencies who too often regulate through shortcut guidance in order to circumvent the notice-and-comment rulemaking process.” — Harriet Hageman, NCLA Senior Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan nonprofit civil rights organization 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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WASHINGTON, DC — The New Civil Liberties Alliance is pleased that USDA’s Animal and Plant Health Inspection Service (APHIS) has announced that it does not currently intend to implement the Radio Frequency Identification (RFID) guidelines after NCLA filed a complaint against the agency on Oct. 4, 2019 in the federal district court in Casper, Wyo.

NCLA’s complaint challenged USDA’s April 2019 RFID guidelines entitled, “Factsheet Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison,” alleging that the agency had acted beyond the scope of its legal authority by adopting regulatory guidance that contradicts the animal identification rule issued in 2013.

APHIS quietly removed the guidance document outlining the type of identification devices that USDA-APHIS would regard as official eartags and the dates by which they must be applied to cattle from its website last week without prior notice after they were served with NCLA’s lawsuit. APHIS issued a press release on its website stating that the document “is no longer representative of current agency policy.” The agency also stated that it had listened to the livestock industry’s feedback and that it will “revisit the guidelines.”

The decision also comes on the heels of recent Executive Orders from President Trump that created new, stricter requirements for issuing guidance. Since July of 2018, NCLA has filed 21 anti-guidance petitions requesting that federal agencies stop promulgating and enforcing guidance that purports to legally bind individual Americans and small businesses.

“USDA knew from the outset that it did not have the legal authority to impose an RFID-only system on our livestock industry. Upon being challenged by NCLA it appears that it may be reversing course, only recently announcing that it is withdrawing its RFID requirements.  I want to thank our clients for being willing to stand up to the federal government and protect the rights of all of our producers.” –Harriet Hageman, Senior Litigation Counsel

NCLA represents the 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, who are challenging the guidelines for violating current traceability regulations, the Administrative Procedure Act (APA), the Federal Advisory Committee Act (FACA) and the Regulatory Flexibility Act (RFA).

Visit Case Summary page here.

ABOUT NCLA 

NCLA is a nonprofit civil rights organization 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. For more information visit us online: NCLAlegal.org.

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Washington, D.C.–The New Civil Liberties Alliance today filed a complaint with the District Court of Wyoming against the United States Department of Agriculture (USDA) and the Secretary of Agriculture Sonny Perdue, as well as the Animal and Plant Health Inspection Service (APHIS) and USDA Administrator for APHIS Kevin Shae. NCLA is asking the Court to stop USDA from enforcing the Radio Frequency Identification (RFID) mandate and the agency’s requirement that cattle producers obtain a premises identification number (PIN) for bison and cattle moving across state lines because these agencies have acted beyond the scope of their legal authority to adopt regulatory guidance and in violation of the animal identification rule issued in 2013.

NCLA represents the 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, who are challenging the mandate for violating current traceability regulations, the Administrative Procedure Act (APA), the Federal Advisory Committee Act (FACA) and the Regulatory Flexibility Act (RFA).

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. But just six years later, the 2019 RFID mandate requires the least flexible and costliest identification methodology available. The mandate forces cattle producers to put the RFID ear tags on livestock destined for market and to do away with animal identification options that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification. The complaint also takes issue with the fact that the agencies established one or more “advisory committee(s)” without complying with the requirements of FACA including the exclusion of groups or parties who are opposed to the RFID Plan.

NCLA released the following statements:

“Forcing livestock producers to adhere to an RFID program will unlawfully deny them access to interstate markets. USDA and APHIS are seeking to mandate compliance with mere guidance. Threatening such unlawful enforcement violates the Constitution and our clients’ Constitutional rights. NCLA is committed to stopping federal agencies from circumventing the law.” – Harriet Hageman, NCLA Senior Litigation Counsel

“This case is a perfect example of the Administrative State flexing its regulatory muscle unlawfully. USDA’s 2013 Final Rule specified the requirements for the official identification of livestock for interstate movement. Now USDA and APHIS want America’s ranchers to disrupt their operations and comply with a new mandate that has not gone through proper channels. USDA cannot replace regulation with contradictory guidance.” – Mark Chenoweth, NCLA Executive Director and General Counsel

See the full case summary here.

ABOUT NCLA NCLA is a nonprofit civil rights organization 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.

Click to download