WASHINGTON – The US Dept. of Agriculture filed a motion to dismiss a lawsuit challenging the agency’s plan to implement a livestock traceability program using radio frequency identification (RFID) tags. But lawyers for the plaintiffs want the court to hear the case.

In its motion to dismiss the lawsuit, USDA argued that the specific agency action that prompted the lawsuit was withdrawn and therefore should be dismissed as moot. The Animal and Plant Health Inspection Agency (APHIS) of USDA planned to transition cattle and bison producers to RFID tags from metal ear tags for cattle and bison. The agency intended to discontinue providing free metal ear tags starting Dec. 31, 2019.

But ranchers groups such as the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers from Wyoming and South Dakota challenged the federal traceability program. A legal complaint argued that USDA lacks the authority to mandate RFID use and issued the new plan without allowing time for public comment and without publishing it in the Federal Register, among other issues. APHIS reversed course after listening to producer feedback and said it would revisit the proposed guidelines. The agency removed a factsheet explaining the plan from its website, saying that “…it is no longer representative of current agency policy.”

“In their complaint, Plaintiffs allege that the change announced in the April 2019 Factsheet — the plan to phase out the approval of metal RFID ear tags — caused them substantive and procedural injuries,” the complaint stated. “Since this action was filed, however, the agency has withdrawn the Factsheet and has stated that it no longer represents current agency policy. The agency has further stated that it will ‘take no action changing animal identification requirements’ until it has ‘published a notice in the Federal Register with an opportunity for public comment.’

“In light of the agency’s recent actions, there is no longer a live controversy for this Court to adjudicate.”

But the New Civil Liberties Alliance (NCLA), which filed the lawsuit on behalf of the plaintiffs, wants a judge to hear the case.

“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,” Harriet Hageman, NCLA senior litigation counsel, said. “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.”

USDA said there is no evidence to suggest the original factsheet was withdrawn to avoid an adverse ruling.

“Any anticipated future agency action is clearly not ‘final agency action’ at this time, and Plaintiffs cannot experience any adverse effects from an agency policy that has been withdrawn,” USDA said in its motion. “It cannot be said that the issues are purely legal, as the issues have not yet been developed, nor can it be determined whether a future action will have a direct and immediate impact on the Plaintiffs. Finally, entangling this Court and the parties in litigation at this time will not promote efficiency, but rather will impede the agency’s efforts to move forward and address the issues of animal disease traceability and animal identification.”