Judge Rejects Farmers' RFID Lawsuit

In the wake of Judge Collyer's decision, the FTCLDF now has four options before it, according to the organization's president, Pete Kennedy: filing a motion for reconsideration with the judge (which must be done this week); appealing the decision at the appellate court level; filing a new lawsuit against only the MDA, since the judge rejected the suit largely because the MDA program is a state rather than federal regulation; or dropping the matter entirely. Of those options, Kennedy says, the first is the most likely to be considered, though he adds that the group has yet to decide on its next course of action.

The FTCLDF, along with six Michigan farmers who are among the organization's members, challenged the implementation and enforcement of the mandatory program created to control outbreaks of disease. Bovine tuberculosis (TB) was discovered in Michigan in 1998, and is suspected to have been originally transmitted by wild deer. At that time, the MDA launched early stages of the cattle-identification program that is still in place today. Initially, specific zones within the state were targeted for animal identification. In October 2002, farmers in some zones were required to utilize electronic tags—namely, RFID.

The following year, the USDA launched the National Animal Identification System to help the federal agency track animals nationwide in the case of disease outbreak. The MDA and the USDA entered into memorandums of understanding (MOUs) in which they set up zones for animal tracking in Michigan. In March 2007, the state's electronic tagging requirement became statewide.

Unlike Michigan's program, NAIS does not require that RFID tags be used, nor that identification be made mandatory on all farms. The plaintiffs, however, complained that "the USDA was using the State of Michigan as a puppet to implement NAIS in Michigan under the guise of eradicating TB." While the FTCLDF argued that the agency had pressured the Michigan Department of Agriculture into the program, the USDA and the MDA responded that the state's animal-identification program was launched before they'd established any agreements or MOUs.

Kevin Kirk, special assistant to the MDA's division director, says "We implemented this program nearly 10 years ago in the lower peninsula" to identify cattle and farmers in an area considered vulnerable to bovine TB. "This was done pre-NAIS. The state already had implemented its program when the USDA established NAIS. Michigan is the only state with a mandatory electronic animal-tracking program, but it is also the only state with documented bovine TB cases, so other states haven't had the reason for it."