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Ranch Group Seeks Supplemental Order in RFID Case
USAgNet - 02/20/2020

Harriet Hageman, senior litigation counsel for the New Civil Liberties Alliance, filed a motion in the Wyoming federal district court on behalf of R-CALF USA and ranchers Tracy and Donna Hunt and Kenny and Roxy Fox. The motion asks the court to issue a supplemental order to address one of the important claims that was not resolved when the court dismissed the ranch group's lawsuit because the U.S. Department of Agriculture (USDA) had subsequently withdrawn its radio frequency identification (RFID) mandate.

The ranch group's original lawsuit alleged the USDA committed two major violations when it attempted to require cattle producers to exclusively use RFID technology if they desire to ship adult cattle across state lines. The first major violation was that the government ignored its obligations under the Administrative Procedure Act by issuing its mandate without first providing a notice and comment period to the public. This was the alleged violation that the court found moot after the government withdrew its RFID mandate.

The second major allegation was that the government violated the Federal Advisory Committee Act (FACA) by unlawfully convening one or more advisory committees comprised of only pro-RFID members to assist the agency in formulating the unlawful RFID mandate in the first place.

The motion explains that the violation of the FACA is separate and distinct from the violation of the Administrative Procedure Act and, consequently, the dismissal of the latter did not resolve the former.

Hageman stated in her motion that the FACA is directed to the "process, proceedings and activities leading up to the policy underlying" the RFID mandate and its development. For example, "who was in the room, who was involved, who was 'advising' the USDA and APHIS (Animal and Plant Health Inspection Service), how the policy came into existence, and what materials (studies, reports, memoranda, data, statistics, etc.) were developed in support and as a result of that allegedly defective process."

Hageman's motion asks the court to allow R-CALF USA and the ranchers affected by the government's unlawful act to proceed with discovery. Ultimately, the motion states that the government should be prohibited from using any work product, reports and materials generated by the one or more unlawful federal advisory committees in any future regulatory action around RFID tracking technology.

Because of the government's alleged violation of the FACA, the motion states that it should not be allowed to continue relying upon the "fruit of the poisonous tree," meaning on the work products of the allegedly unlawful committee or committees.

"We believe that it is important to understand how the RFID mandate came about, and ensure that the USDA considers the interest and concerns of the livestock industry, who are ultimately the ones who will bear the compliance costs for such requirements," said Hageman. She added that "allowing discovery pursuant to FACA will provide much needed transparency and accountability."

"The government's actions in issuing its unlawful RFID mandate infringed on the liberties and freedoms of every U.S. cattle producer and we deserve to know precisely what caused the government to act in such a brazenly unlawful manner in the first place so we can better prepare for whatever the government plans to do next," said R-CALF USA CEO Bill Bullard.

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