The cow-calf producer organization R-CALF sued the USDA on Oct. 30 to stop the agency from requiring ranchers who move cattle and bison across state lines to use electronic identification ear tags.

USDA overstepped its authority to regulate livestock movements, according to the suit, filed in the U.S. District Court for South Dakota. The rule takes affect Nov. 5.

R-CALF CEO Bill Bullard said he still hopes Congress will intervene and overturn the rule. “We didn’t want to put all our eggs in one basket, so we essentially opened another front with this lawsuit.”

USDA declined to comment on the lawsuit. In adopting the rule in April, the agency said electronic records will help animal-health officials rapidly traceback the movements of diseased livestock.

Ear tag rule

The rule will apply to about 11 million cattle or 12% of the nation’s cattle herd, the USDA estimates. The National Cattlemen’s Beef Association supported the rule as a way to prevent industry wide financial losses.

R-CALF and other rule critics say it will impose costs on struggling ranches. Brands and paper records are sufficient to trace and contain animal diseases, they contend.

R-CALF was joined in the lawsuit by the South Dakota Stockgrowers Association, Texas-based Farm and Ranch Feedom Alliance, and several individual ranchers in South Dakota and Wyoming.

New Civil Liberties Alliance represents them. According to its website, the alliance “views the administrative state as an especially serious threat to constitutional freedoms.”

The rule grandfathers in cattle and bison tagged with non-electronic identification for as long as they live.

The alliance does not anticipate seeking a preliminary injunction to stop the rule from taking effect next week, alliance attorney Kara Rollins said in an email.

USDA authority

The Animal Health Protection Act authorizes the agriculture secretary to adopt restrictions necessary to prevent animal diseases from spreading.

The lawsuit argues the rule isn’t necessary. The rule will apply to too few cattle to do anything but marginally improve tracing diseases, according to the suit.

The court shouldn’t defer to USDA’s judgment in light of the U.S. Supreme Court’s recent Loper decision, the lawsuit states. Loper buried the Chevron deference, which gave agencies the benefit of the doubt in close calls.

The end of the Chevron deference curbs USDA’s purported authority, Rollins said.

“We believe that the (electronic identification) mandate is not supported by or enforceable under the clear text of the Animal Health Protection Act,” she said.

The lawsuit also claims ranchers face a shortage of electronic ear tags. An ear tag retailer’s web site on Oct. 31 warned customers that they will have to wait weeks for ear tags.

Bullard said R-CALF will ask USDA to delay the rule. “It’s an untenable situation,” he said. “USDA is causing turmoil within the industry, and it’s totally unnecessary.”