(John Hult – North Dakota Monitor) – A group of ranchers and cattle industry associations is suing the U.S. Department of Agriculture in federal court in South Dakota to block a rule requiring electronic ear tags for cattle that cross state lines.
The lawsuit aims to undo a rule published in May that some in the ranching community see as expensive, unnecessarily burdensome and implemented in conflict with federal rulemaking norms.
The rule comes from the USDA’s Animal and Plant Health Inspection Service, and versions of it have seen significant pushback from ranchers since 2019. Previous proposals were scrapped after public comment periods. The latest version of the rule was published in May, and would phase out traditional ear tags in favor of electronic identification for cattle and bison older than 18 months that are shipped across state lines, all dairy cattle and cattle or bison used for rodeo or recreation.
Electronic tags, the agency says, reduce the possibility of human error, because they wouldn’t require a person to manually log information on ear tags. The electronic tags are also meant to make it easier for veterinarians to access information about a herd when attending to a sick animal.
The rule is meant to take effect on Tuesday. While many ranchers and ranch groups oppose the mandate, the opposition is not universal. The National Cattlemen’s Beef Association supports the electronic ID rule, and has been releasing guidance for livestock growers on how to comply throughout the year. The National Milk Producers Federation has also pushed for ID rules.
New lawsuit for previous rule opponents
The plaintiffs in the South Dakota lawsuit are the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA), South Dakota Stockgrowers Association, Farm and Ranch Freedom Alliance, Kenny and Roxie Fox, Rick and Theresa Fox, and Tracy and Donna Hunt of the MW Cattle Company of Wyoming and South Dakota.
Some of the same plaintiffs challenged a similar mandate in 2019. The USDA dropped its pursuit of the mandate in the face of resistance from numerous corners of the livestock industry shortly thereafter. The rule came back in a new form in 2023 in the run-up to the May 2024 final rule.
The groups argue in their new lawsuit that by bringing the rule back in a form substantially similar to previously ditched efforts, the USDA violated federal laws on administrative rulemaking.
The tags are expensive and impractical, the plaintiffs argue, and are not necessary to achieve the goals of the law for which the USDA wrote the rule. The USDA has argued that the tags can help trace animal diseases across state lines more effectively than the brands and ear tags commonly used by smaller producers.
In comments to the USDA last year, the plaintiffs wrote that the rule “was unnecessary because current animal disease traceability methods are adequate” and “does not actually address a fundamental problem” with the current system.
“All of Plaintiffs’ comments and concerns were rejected or ignored,” the lawsuit states.
The plaintiffs are asking a judge to invalidate the USDA rule and permanently prevent the agency from imposing it on them.
Case leans on recent U.S. Supreme Court ruling
The case is among the first filed in South Dakota that leans on this year’s U.S. Supreme Court June 28 decision in Loper Bright vs. Raimondo, which undid a four-decade precedent called the “Chevron doctrine.” The doctrine expected federal court deference to the judgment of federal agents who write rules to carry out the mandates in laws passed by Congress.
Under Chevron, plaintiffs who sought to challenge agency regulations had to clear a high bar to prove that an agency overstepped its authority. Without Chevron, judges are no longer expected to give preferential weight to the expertise of agencies when rules are challenged in court.
Loper Bright has sparked a flurry of court challenges to federal rules since June. Google Scholar lists more than 200 federal cases nationwide citing Loper Bright so far this year.
The case in South Dakota, which cites Loper Bright, spins out of longstanding resistance in some quarters to the electronic tagging requirements.
Last month, a group of ranchers held a rally in Rapid City, at which some speakers with the industry suggested the mandate would end the cattle industry.
The rally was held in tandem with the annual convention of the South Dakota Stockgrowers Association.
According to coverage from The Dakota Scout, ranchers are concerned about the cost of the tags, but also fear that electronic tracking will be used to clamp down on ranchers in the name of climate change. U.S. Rep. Harriet Hageman, R-Wyoming, spoke at the event, and warned that ID tags in Denmark have helped that nation’s government levy taxes on livestock producers over emissions from their animals.
Rounds aims to block rule with legislation
Sen. Mike Rounds, R-South Dakota, has railed against the rule for years. In May, shortly after the most recent version of the rule was published in the federal register, Rounds introduced a bill that would bar the USDA from instituting electronic tagging mandates. Hageman has introduced a similar bill in the House of Representatives.
South Dakota state lawmakers have also weighed in on the issue. In 2022, Gov. Kristi Noem signed a bill into law that says livestock owners can choose any of the identification options available under federal rules from 2013, or options endorsed by the state Animal Industry Board.
Earlier this month, Rounds brought up Loper Bright during a question and answer session with the Sioux Falls Chamber of Commerce. For too long, he said, agencies had too much authority in rulemaking, citing the electronic tagging rules as a particularly egregious example.
Ranchers aren’t opposed to ear tags necessarily, but Rounds said the USDA shouldn’t impose rules for specific types of tags from afar.
“Why in the hell is the federal government telling our farmers or ranchers what kind of a damn ear tag they’ve got to put in the ear of their livestock?” the senator said during the Oct. 9 event in Sioux Falls.
The rule “may be a good idea,” Rounds said, but he doesn’t think regulators should be making laws without listening to the industry and taking its concerns seriously.
Overturning the Chevron doctrine, he said, has given ranchers a better chance to succeed in court.
“On that type of a deal, can they come back in under Chevron and challenge it?” he said. “Yeah, I think they probably can.”
A representative from the USDA told South Dakota Searchlight by email that the agency cannot comment on pending litigation. The attorney representing the ranchers in the federal lawsuit did not immediately responded to requests for comment Friday.
A news release from Ranchers-Cattlemen Action Legal Fund says the rule “imposes punishing new financial and practical burdens, particularly on smaller and independent cattle producers.”
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