DENVER (CN) — Broad use of radio-frequency ear tags would make it easier to round up sick cattle, but implementing the technology comes with an estimated $2 billion cost. The 10th Circuit on Monday considered whether the U.S. Department of Agriculture legally consulted with industry groups, or whether it had cherry-picked advisers to bolster plans to move forward with requiring the technology.
The Ranchers Cattlemen Action Legal Fund and United Stockgrowers of America sued the USDA in 2019 to stop a proposed mandate that would require cattle producers to put the pricey ear tags on bison and cattle moving across state lines. The ranchers favored cheap and easy tattoos and brands.
A federal judge initially dismissed the lawsuit in February 2020 when the USDA withdrew a factsheet promoting the change, even as the agency continued to mull mandating the technology.
Two working groups formed to discuss the issue — the Cattle Traceability Working Group and the Producers Traceability Council. While the USDA claims it neither created nor managed the groups, the Ranchers Cattlemen Action Legal Fund took issue with their biased makeup, claiming violations of the Federal Advisory Committee Act (FACA).
The ranching organizations filed an amended complaint on April 6, 2020, seeking to revive claims the USDA was violating the Administrative Procedure Act and attempting to force the industry to adopt the radio-frequency tags. When the lower court dismissed the second complaint in May 2021, the plaintiffs appealed.
Harriet Hageman, an attorney with New Civil Liberties Alliance, opened oral arguments at the 10th Circuit on Monday by acknowledging National Sunshine Week, a March celebration of open government.
“There are not a lot of tools to hold agencies accountable; FACA is one of those, and we should not interpret it out of existence,” Hageman told the panel, adding that if not for the USDA, neither working group would have come together.
U.S. Circuit Judge Jerome Holmes, a George W. Bush appointee, pushed back. “What basis is there to believe the USDA wouldn’t have come to the same conclusion without the groups?” he asked.
Hageman said the USDA couldn’t have moved forward with rulemaking without the working groups' input and urged the panel to focus on the rule’s consequences.
“The harm is the USDA is trying to move forward with a radio-frequency identification requirement based on two committees illegally formed under FACA,” Hageman said.
Holmes again pressed. “There’s the harmless error doctrine under the Administrative Procedure Act, and if you can’t show they wouldn’t have done the same thing anyway, you don’t have harm,” he said.
On rebuttal, U.S. Attorney Sean Janda emphasized the importance of adopting the enhanced ID tags to be able to respond to disease outbreaks in a timely fashion.
Senior U.S. Circuit Judge Mary Beck Briscoe, appointed by Bill Clinton, cut right to the heart of the ranchers' argument.
“Was it true that the industry understood the agency wanted to move toward the IDs?” Briscoe asked.
Janda said the agency was following the required process.
“The agency wasn’t going to move forward to impose electronic identification requirements without going through notice and comment rulemaking,” Janda said.
Although the USDA consistently denied forming the groups in question, Holmes posed a hypothetical.
“Let’s assume the agency says ‘we now think this is a good idea, we don’t want to fashion the rule before we find what affected parties think about that rule, and so we’re going to reach out to groups to understand the upside and downside,’” Holmes postulated. “Would there be any FACA violation there?”
Janda said no.
“It’s basic good governance to engage with people who may be impacted,” Janda said. “I think FACA plays an important role, but it’s not the only law governing agency rule making.”
U.S. Circuit Judge Nancy Moritz, appointed by Barack Obama, rounded out the panel. The hearing was held in person Byron White U.S. Courthouse in Denver and broadcast to 32 viewers via YouTube. The court did not indicate when or how it would decide the case.
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