Newly passed legislation that would allow Wyoming bison and cattle ranchers to use any method of state-approved livestock identification — rather than federally mandated eartags — could soon be challenged by federal policy.
The policy may erode a recent victory by Wyoming’s ranching industry that earned them more autonomy over tracking their animals, and industry groups are watching developments closely.
In 2019, ranchers in eastern Wyoming and Montana filed suit against the U.S. Department of Agriculture over a new mandate requiring ranchers to use a specific type of high-tech eartag tracking device when transporting stock across state lines.
The remote frequency identification devices enable federal regulators to track the movements of cattle in the supply chain and help better identify diseases, which proponents say could potentially boost consumer confidence.
But when the RFID requirement was implemented in 2019, the ranchers argued the policy change would put them at a competitive disadvantage to their neighbors in Nebraska, who — raising and feeding their cattle in the same state — would not have been subject to the same requirement. The rule change was also implemented illegally, the ranchers — represented by New Civil Liberties Alliance attorney and former Wyoming gubernatorial candidate Harriet Hageman — alleged, passed as part of an agency fact sheet with no formal public comment period.
After the NCLA sued on behalf of the ranchers, the USDA reversed course. And in the 2021 legislative session, state lawmakers codified that victory through House Bill 229 – Livestock identification choice act, which would allow Wyoming bison and cattle ranchers to use any method of livestock identification approved by the state to track their livestock.
“If you go back 20 or more years, there’s always been a widespread reluctance throughout the ranching community, to put any type of permanent identification on their animals other than the good old-fashioned brand that’s used for identifying ownership,” Jim Magagna, executive director of the Wyoming Stockgrowers’ Association, said. “Identification for traceability has been something that the industry has resisted for a long time.”
There are currently a number of requirements for USDA certification. However, disease traceability is currently a jigsaw puzzle of regulations, often differing from state to state. Wyoming, for example, has its own tracking program administered through the Wyoming Department of Agriculture to monitor spread of diseases like brucellosis.
For years, the USDA has sought to implement a new standard for traceability but hasn’t found success, leading the agency to “legislate by guidance,” according to the NCLA.
Opponents of the tags — which cost about $5 a piece — have often made argued against them on financial grounds, saying their requirement would present an undue burden on cattle producers in states like Wyoming who regularly cross state lines to feedlots in states like Nebraska. Other groups, like the WSGA, have argued that any system in identifying livestock for diseases should be driven by the states, rather than the federal government.
Those plans could eventually be coming. Though the USDA has since rescinded its RFID requirement, the agency announced in March it will pursue the requirement anew through the formal rulemaking process, saying in a news release it “continues to believe that RFID tags will provide the cattle industry with the best protection against the rapid spread of animal diseases.”
If those regulations are deemed to be constitutional and ultimately adopted by the USDA, they would overrule Wyoming’s HB-229. Sen. Brian Boner (R-Douglas), a rancher and a co-chair of the Legislature’s Joint Agriculture Committee, said that the importance of Wyoming’s bill lay primarily in “having a discussion” about the state’s relationship with federal mandates.
“I’m not an attorney, and I don’t know if a bureaucracy can just unilaterally decide to overrule a state law,” Boner said Monday while on a break from tagging calves on his ranch in Converse County. “Certainly a law passed by Congress does, but I don’t know if the bureaucracy can unilaterally do that, especially with a change that could cost the livestock industry well over a billion dollars in additional costs. So I think that it’s important enough that we stand up for our producers and give them some protection under state law to at least have that litigated.”
In recent months, the USDA has sought to increase the adoption of the technology by offering 8 million free RFID tags to ranchers.
“This will not only help offset the costs of switching to RFID tags, but also help us more quickly respond to potential disease events,” former USDA Undersecretary for Marketing and Regulatory Programs Greg Ibach said in a statement announcing the rollout of the program in August 2020.
It is still unclear if the rule changes will ultimately go through. In February, Hageman filed a lawsuit on behalf of the ranchers arguing the federal government failed to comply with federal law while using two advisory committees to gather information necessary to implement the RFID eartag mandate. If the lawsuit succeeds, the NCLA wrote in a news release, the USDA “will not be able to use any of the recommendations or information obtained from the unlawful advisory committees in proposing a new RFID rule.”
Magagna’s organization is unlikely to support the newly proposed RFID requirement, he said. The WSGA’s position could be flexible, however, assuming the federal government avoids turning the technology into an unfunded mandate on cattle producers, he said.
“I would anticipate at this point as an organization that we will likely not support it as it’s been proposed,” he said. “But we will withhold some judgment on that until we see exactly what is proposed. If it’s flexible enough or if it came with funding for the USDA to provide the tags or something, there is always the possibility that we could change our position, certainly.”