Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric.

539 F.Supp.3d 1220

RANCHERS CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA, Tracy and Donna Hunt, d/b/a The MW Cattle Company, LLC, and Kenny and Roxy Fox, Petitioners,

v.UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Respondents.

Case No. 19-CV-205-F

United States District Court, D. Wyoming.

Signed May 13, 2021

Harriet M. Hageman, New Civil Liberties Alliance, Washington, DC, for Petitioners.

Nicholas Vassallo, US Attorney's Office, Cheyenne, WY, for Respondents.

ORDER

NANCY D. FREUDENTHAL, UNITED STATES DISTRICT JUDGE

The only claim remaining in this case is Petitioners’ (collectively, "R-CALF") claim that Respondents (collectively "APHIS"¹ ) violated the Administrative Procedure Act (APA). More specifically, R-CALF alleges APHIS failed to comply with the Federal Advisory Committee Act (FACA) which constitutes arbitrary and capricious agency action in violation of the APA. CM/ECF Document (Doc.) 27, pp. 28-29. A more focused statement of the issue presented is whether APHIS correctly determined that FACA did not apply to its work with the Cattle Traceability Working Group (CTWG) and the Producer Traceability Council (PTC). See Doc. 47, p. 2. This issue requires the Court to decide whether APHIS "established" or "utilized" these committees.

To aid in this determination, R-CALF seeks to complete the agency record with certain documents R-CALF received in response to a Freedom of Information Act (FOIA) request. Doc. 52, 62. R-CALF argues these documents are relevant to the FACA "established" and "utilized" issues. APHIS opposes completion based primarily on a merits argument as to the meaning of "established." The Court agrees with R-CALF that its proffered documents for completion of the record are relevant to R-CALF's argument as to the proper interpretation and application of "established" under FACA. For this reason, the Court grants R-CALF's motions to complete the agency record and will consider the documents supplied by R-CALF as part of the agency record. Doc. 52-1, 62-1, 62-2, 62-3, 62-4 & 62-5.

Background

On October 4, 2019, R-CALF filed a Petition for Review of Agency Action and Complaint for Declaratory Judgment and Injunctive Relief, challenging APHIS'S issuance of a 2019 "Factsheet" entitled "Advanced Animal Disease Traceability: A Plan to Achieve Electronic Identification of Cattle and Bison." Doc. 1. R-CALF alleged the Factsheet unlawfully mandated the use of radio frequency identification (RFID) eartags and technology for certain categories of livestock. On October 25, 2019, APHIS posted a statement on its website announcing that it had removed the Factsheet from its website, "as it is no longer representative of current agency policy." (Doc. 11-3). This Court concluded R-CALF's petition seeking relief from the Factsheet was moot, and dismissed the case for lack of jurisdiction. Doc. 21.

On R-CALF's Rule 60(a) motion, the Court granted leave for R-CALF to amend its FACA claim. Doc. 26. A timely amended complaint and petition was filed. Doc. 27. That filing led to a dispute concerning whether discovery on R-CALF's FACA claim would be permitted. By Order, this Court reaffirmed that the case would proceed under a record review rather than as a civil case where discovery is permitted. Doc. 46. The Order concluded that FACA affords no private cause of action. Thus, all FACA violation claims would proceed only under the judicial review provision of the APA. Id.

APHIS filed its administrative record on July 6, 2020 (Doc. 29), and supplemented the record on August 28, 2020. Doc. 39. By Order entered December 23, 2020, the Court allowed five extra-record documents submitted by R-CALF (Doc, 47-1, 47-2, 47-3, 47-4 and 47-6), to complete the agency record. Doc. 50. Consistent with this Order, the Court will also consider six additional documents supplied by R-CALF. Doc. 52-1, 62-1, 62-2, 62-3, 62-4 & 62-5. The agency record and R-CALF's extra-record documents show the following as to APHIS, the CTWG and the PTC relative to the issue of whether APHIS "established" or "utilized" these two entities:

1. In 2013, APHIS published a rule entitled "Traceability for Livestock Moving Interstate." AR 110. However, internal assessments by APHIS concluded that an electronic ID device (EID) was required for a truly effective Animal Disease Traceability (ADT) program. Administrative Record (AR) 112-114.

2. APHIS established a State-Federal ADT Working Group² in 2017 which provided recommendations to APHIS, including the recommendation that the United States "must move toward an EID system for cattle with a targeted implementation date of January 1, 2023." AR 124. The recommendation also recognized that a comprehensive plan would be necessary to "address the multitude of very complex issues related to the implementation of a fully integrated electronic system" and "[a] specialized industry-lead task force with government participation should develop the plan...." Id.

3. APHIS also acknowledged "we must achieve an industry-driven, pro-traceability position that supports [EID]." To achieve this strategic goal, "APHIS officials must meet with industry leaders frequently and focus discussion on critical issues, while moving forward with any changes to the current system in a transparent manner." AR 139. APHIS anticipated it would "provide a lead role in communicating the issues at stake" and "[e]ncourage formation of an industry-led task force with input from animal health officials as needed." Id.

4. In September 2017, a Strategy Forum on Livestock Traceability was held, funded in part and co-hosted by APHIS. Doc. 47-2, 47-4 at p. 3. Key recommendations from the State-Federal ADT Working Group were discussed, including the recommendation to put together a group of industry stakeholders in order to drive the ADT movement forward. AR 141; Doc. 47-4. Various APHIS employees actively participated in the Denver meeting. Doc. 47-1, 47-2, 47-4 at pp. 3 & 27.

5. The executive committee for the National Institute for Animal Agriculture (NIAA)³ met on November 8, 2017 to form and name CTWG, and to discuss CTWG's membership. AR 385-87. The group discussed government involvement and was advised by NIAA's Chief Operating Officer that an APHIS official only wanted "to be kept up to speed/informed, and ... participate as needed." Id. The NIAA executive committee decided that cost would be a shared responsibility among the participants. Id. CTWG's goal was to advance ADT. AR 5, 385, 466, 491, 927-929; Doc. 47-4, p. 25.

6. CTWG first met on November 20, 2017. AR 491. No APHIS officials attended. AR 5. However, CTWG desired to work in parallel with APHIS efforts. Id. APHIS officials were invited to a CTWG meeting on April 8, 2019 to provide an update on current activities. AR 927-29.

7. CTWG (and its various subgroups) met regularly. Its purpose was "to work collaboratively across the various segments of the cattle industry to enhance the traceability of animals for purposes of protecting animal health and market access." AR 491. In notes associated with CTWG, APHIS continued to envision moving forward with an EID system for effective traceability. AR 511. CTWG and APHIS worked closely together, and CTWG made frequent recommendations on ADT and EID technology. AR 795, 830-35, 867, 872-73, 884-87.

8. Internal dissension arose within CTWG, with some participants believing CTWG had served its purpose or reached a point of diminishing returns. AR 869, 879, 882, 915. 929, 957. APHIS expressed a concern with how the dialogue would continue and an interest in an alternative to CTWG. AR 879. One APHIS official observed, "I don't know what the next group might look like or how we pull them together but something we should consider. It just wont [sic] be able to have NIAA/Katie Ambrose appearing as the helm." AR 901.

9. APHIS was advised that the "Producers Council" was "a spinoff" from the CTWG, and that this spinoff group would be announced at the April 8, 2019 NIAA Annual Conference. AR 914-915, AR 869, 892, 1018-1021. The co-chairs of the Producers Council were cattle industry representatives who previously served on CTWG. AR 915. These co-chairs were tasked with putting together "a small, action oriented group with the singular goal of looking at the work [CTWG has] done, and the work yet to be done, uniquely through the eyes of the producers we all serve." Id.

10. The Producers Council (also referred to as the Producer Traceability Council (PTC)) first met on May 6-7, 2019. AR 921. An APHIS official attended the meeting and was asked to be identified as a "government liaison" and "non-voting member." AR 332, 921, 933. NIAA commented to an APHIS official that the APHIS official underestimated her value to PTC as she was able to answer many questions that would have gone unanswered and slowed the process further. AR 945. One or more APHIS officials attended meetings with PTC. AR 968, 988, 1013, 1018. APHIS edited minutes for at least one meeting. AR 1061-63.

11. By press release dated May 15, 2019, the PTC announced it had reached consensus on two major points to increase the number of cattle identified in the United States. AR 948. One point was to select High Frequency/Ultra High Frequency radio identification system and timeline for adoption of the system to mirror the US Department of Agriculture's timeline for sunsetting of metal tags with complete implementation no later than January 1, 2023. Id.

12. Throughout 2018-19, CTWG and PTC sent APHIS a regular stream of RFID-related technical advice, approved by formal votes of those committees. AR 864-867 (CTWG); AR 335-36 (PTC).

Discussion

The Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 § 1, was enacted by Congress in 1972 based upon "a desire to assess" the need for the "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." Public Citizen v. United States...