“Guidance" is not Law: NCLA’s Stands up for America’s Ranchers

Government agencies are not above the law. A documentary video released by NCLA 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 Animal and Plant Health Inspection Service (APHIS) seem to think they are. 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 their 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 that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification numbers.

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 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While USDA and APHIS have withdrawn their “Factsheet” and their mandatory RFID requirement along with it, the fact remains that they violated numerous laws and regulations when they attempted to force compliance with a mere “guidance” document in the first place and should be held accountable for their illegal actions.

NCLA is a nonpartisan, nonprofit civil rights group, representing 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.