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Farm-To-Consumer Legal Defense Fund v. Vilsack

July 23, 2009


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Plaintiffs sue the Secretary of the U.S. Department of Agriculture ("USDA") and the Director of the Michigan Department of Agriculture ("MDA") seeking to enjoin the implementation and enforcement of the National Animal Identification System ("NAIS"). Plaintiffs object to MDA's transition from the unique state-created animal and premises identification system to the nationally uniform NAIS. Before the Court are USDA's motion to dismiss and MDA's motion to dismiss and/or for summary judgment. For the reasons explained herein, the Court will grant USDA's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), and will grant MDA's motion for summary judgment under Federal Rule of Civil Procedure 56.


The individual Plaintiffs are farmers who raise livestock in a sustainable manner, all but one of whom live in Michigan. The lead Plaintiff is an advocacy group of which each individual Plaintiff is a member. They complain that USDA is "destroying their pleasant agricultural way of life" by developing the NAIS. Pls.' Opp'n to USDA's Mot. to Dismiss at 6. Plaintiffs assert that NAIS requires Premises Identification Numbers ("PINs") for each of their farms and radio frequency identification devices ("RFIDs")*fn2 for each of their cattle, both of which result in the collection of information into a huge national database against their wills and in violation of their religious beliefs.*fn3 Because the MDA has adopted the NAIS format to identify individual cattle, imposes PINs on their farms, and requires RFID tags when cattle are moved intrastate to market or slaughter, Plaintiffs complain that it is complicit with USDA and also violating their rights.

A. The National Animal Identification System

Commencing in 2003, USDA has taken steps to develop the NAIS, a Federal-State-Industry initiative that is designed to trace animals so that those associated with an incident of a livestock disease such as bovine tuberculosis ("TB") can be identified and the disease contained. See 69 Fed. Reg. 35,575 (June 25, 2004). USDA issued an interim rule in November 2004 and a final rule in July 2007, amending its regulations to recognize the NAIS identification format as an additional numbering system to identify animals in interstate commerce and the premises where they are held. See 69 Fed. Reg. 64,644 (Nov. 8, 2004); 72 Fed. Reg. 39,301 (July 18, 2007). Conceptually at least, NAIS is intended to identify with particularity all livestock and poultry entering the food chain through interstate commerce and the farms from which they came. Plaintiffs are alarmed by such a gargantuan collection of personal information about themselves and their livelihoods. See 1st Am. Compl. ¶ 46 ("In the 2004 interim rule, USDA recognized the massive scope of NAIS, acknowledging the presence of over one million cattle producers and 95 million beef and dairy cattle in the United States, not including hogs, sheep, poultry and other domestic animals, which would 'need to be identified if the NAIS were to be fully implemented.'"). Each of the individual Plaintiffs "ha[s] either already decided that complying with NAIS is too costly and thus [they] will have to quit farming altogether, that it infringes on their personal freedoms and invades their privacy, or that the NAIS program violates their religious freedoms and beliefs." Id. ¶ 3.

NAIS has three components: (1) premises identification (locations that manage or hold animals), which constitutes a unique seven-character identifier; (2) animal identification (either individually or with a group/lot number), which associates an animal with a premises and gives its birthplace; and (3) animal tracking, so that as an animal moves from one to another premises, its individual number will be associated with the new premises identification number. The Animal and Plant Health Inspection Service, a component agency of USDA, administers the Animal Health and Protection Act, 7 U.S.C. § 8301 et seq., which empowers the Secretary of USDA to control interstate and foreign commerce in animals when necessary for the control of animal disease. It has developed NAIS as part of that effort. Neither the regulations issued by USDA nor any rules or guidance documents issued by USDA to develop aspects of NAIS govern the intrastate movement of cattle. Decisions to use NAIS compliant identifiers for the intrastate movement of cattle are made by the states.

B. MDA Adoption of NAIS Format

Plaintiffs complain that USDA "is using the State of Michigan as a puppet to implement NAIS in Michigan under the guise of eradicating TB, a disease that is not being caused by animals on farms but rather is being caused by wildlife in Michigan." 1st Am. Compl. ¶ 58. MDA retorts that it has exercised its own discretion, over a period of years, to require animal identification and premises identification in an effort to eradicate bovine TB in the state, and independently decided to require PINs and RFID tags for cattle being moved within Michigan.

Michigan's Animal Industry Act, Mich. Comp. Laws § 287.701 et seq., is similar to the federal law in that its purpose is "to protect the health, safety, and welfare of humans and animals." Id. § 287.701(2). Section 9(8) of that law authorizes the Director of the MDA to require the identification of animals and to control their movements intrastate:

The director may develop, implement, and enforce scientifically based movement restrictions and requirements including official bovine tuberculosis test requirements, prior movement permits, official intrastate health certificates or animal movement certificates to accompany movement of animals, and official identification of animals for movement between or within a disease free zone, surveillance zone, and an infected zone, or any combination of those zones.

Id. § 287.709(8). The Act also requires that "[a]ll cattle, goats, sheep, and privately owned cervids [(deer)] shall bear official identification before they leave a premises." Id. § 287.711b(1). "Official identification" is defined as "an identification ear tag, tattoo, electronic identification, or other identification as approved by the United States department of agriculture or the [MDA]." Id. § 287.706(2). In addition, the Act requires identification of all cattle, bison, goats and privately owned cervid when either presented at any livestock auction market or marketed for immediate slaughter. Id. § 287.733(2) & (3).

Bovine TB was discovered in Michigan cattle in 1998, apparently transmitted from wild deer. Thereafter, the Director of the MDA issued a series of orders pursuant to Section 9(8) of the Act establishing zones within Michigan based on the prevalence of the disease, setting testing requirements, imposing movement restrictions and requiring animal and premises identification. As part of this on-going TB eradication program, the Director issued an order effective March 10, 2002, establishing three zones within the state: (1) an infected zone consisting of four northeast Lower Peninsula counties; (2) a surveillance zone of six counties surrounding the infected zone; and (3) a disease free zone constituting all the remaining counties in Michigan. See MDA's Mot. to Dismiss and/or for Summ. J., App. at 10-11 (MDA Order Effective March 10, 2002). "Official identification" was required of "any domestic livestock" in any of the three zones that moved from any premises within the state. See id. In the infected zone, the use of electronic identification was "strongly encouraged." Id. at 10. This order was issued in conjunction with a 2002 Memorandum of Understanding ("MOU") between Michigan and USDA, by which USDA agreed to the maintenance of split status zones for bovine TB in Michigan.*fn4 The purpose of the 2002 MOU was to "establish criteria for the maintenance of split status zones for bovine tuberculosis (TB) in Michigan." Id. at 27 (2002 MOU). The 2002 MOU defined "domestic livestock" as "all cattle, goats, bison, and privately owned cervides." Id. Zones were established in Michigan by the 2002 MOU based on the risk level for bovine TB. The 2002 MOU "did not establish the use of electronic ear tags as a condition of maintaining zone status." Id. at 1-9 (Aff. of Kevin Kirk ("Kirk Aff.") ¶ 8).

The next order was effective October 1, 2002, and modified the March 10, 2002 order by requiring that "[a]ll herds in the Disease Free Zone must obtain a premises identification number issued by the department before any movement of livestock from such herds may occur," and that "[a]ll cattle (bovine) [in the infected and surveillance zones] being tested as part of a whole herd test to satisfy surveillance herd testing requirements shall be identified with Radio Frequency Identification (RFID) 'electronic' ear tags except under special circumstances approved by the director." Id. at 12-13 (MDA Order Effective October 1, 2002). The RFID ear tags and premises identification were not based ...

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