FTCLDF 2008 YEAR IN REVIEW

NAIS – MICHIGAN

The National Animal Identification System (NAIS) was developed by USDA and is being implemented through the department’s Animal and Plant Health Inspection Service (APHIS) and various state agencies, including the Michigan Department of Agriculture (MDA). The alleged purpose of NAIS to provide a comprehensive program of animal tracking whose goals are to:

1. assign and register in a nationally coordinated database a unique premises identification number (PIN) for every farm with any livestock or poultry;

2. assign and register in a nationally coordinated database every animal on each “premises” a unique animal identification number (“AIN”) or group identification number (“GIN”); and

3. track and trace the movement of all such animals.

At the state level NAIS is being implemented primarily through memorandums of understanding (MOUs) and cooperative agreements between APHIS and the state departments of agriculture. Michigan is the furthest along among the states in implementing NAIS, requiring premises ID numbers for all farms with cattle and radio-frequency identification (RFID) tags placed on all cattle. RFID tags constitute an acceptable form of AIN according to APHIS. There are no statutes or regulations in place at this time specifically authorizing either APHIS or the USDA to mandate PIN or AIN at either the federal level or in the state of Michigan. The implementation of NAIS by both APHIS and MDA amounts to an end-around on the process of representative government.

On May 14, 2008 Gary Cox, on behalf of FTCLDF, sent a letter to USDA and MDA notifying the agencies of the Fund’s intent to sue them unless “legal deficiencies associated with the development and implementation of the National Animal Identification System” were cured. Neither USDA nor MDA ever formally responded to the letter; so, on September 8 the FTCLDF filed a lawsuit in the federal district court of the District of Columbia to enjoin the implementation and enforcement of NAIS by USDA and MDA. The complaint alleges violations of the following federal and state laws in the implementation of NAIS:

1. The federal Administrative Procedures Act;

2. The federal Regulatory Flexibility Act;

3. The procedural and substantive due process clauses under the Fifth Amendment to the U.S. Constitution;

4. The procedural and substantive due process clauses under the Fourteenth Amendment to the U.S. Constitution;

5. The National Environmental Policy Act;

6. The federal Religious Freedom Restoration Act;

7. The Michigan Administrative Procedures Act; and

8. The free exercise clause of the Michigan Constitution.

Listed as plaintiffs along with FTCLDF were six Michigan cattle farmers who are members of the Fund.

USDA and MDA filed responses to the complaint on November 13 and November 17, respectively, with each agency filing a motion to dismiss the Fund’s lawsuit. This usually happens in this type of case. The Fund has until January 12 to file a response.

In its response to the complaint, USDA claimed NAIS was a voluntary program. We now know that is not true. A memo USDA-APHIS issued September 22 to its “Veterinary Services Management Team” makes clear that premises registration would be required for those who participate in any of the various disease program activities. Participants who refuse to voluntarily register their premises would have their premises involuntarily registered for them. The Fund’s lawsuit against NAIS will be a difficult fight but as more evidence emerges about how USDA is trying to force NAIS on farmers, the chances for success increase.

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Aside from the cases FTCLDF has taken on, we provide daily consultation to our members on matters ranging from setting up herd share programs to answering questions about the interpretation of various state and federal food laws. The Fund is particularly active in getting farmer members started in distributing raw milk legally through animal share agreements. To date the Fund has generated documents for over one hundred members starting up herd share/lease programs. The number of farmers selling products of the farm direct to consumers continues to grow. The Fund looks forward to working for increased freedoms for farmers and consumers in 2009.