A Legal View of NAIS

[Oldtimer]

Some Comments on NAIS
from Roger McEowen, Leonard Dolezal Professor in Agricultural Law

Reprinted with permission from his article
“Legal Issues Associated With National Animal Identification Plan”
November 2006 issue of Kansas Farm and Estate Law

The original push for a nationwide animal identification program came from the national Institute for Animal Agriculture (NIAA), a private membership group consisting of major agribusiness and pharmaceutical corporations (and their lobby groups at the state and national level) including Cargill Meat Solutions, Monsanto Co., Pfizer Animal Health, Ltd., and the National Pork Producers Council. In 2002, the NIAA organized a task force composed of approximately 70 representatives from more than 30 stakeholder groups to produce a National Identification Work Plan.

Confidentiality of information. A primary concern of livestock owners is the degree and scope of access to confidential records that would be collected with respect to livestock on a particular farm or ranch. The major question is whether collected records could be accessed by other government agencies (such as the IRS), animal rights extremists, or even other livestock owners. The USAIP does not answer this question. Instead, the USAIP merely states that “only essential information will be reported to the central database” and that “only sate and federal officials will have access to the premises animal identification information when performing their duties to maintain the health of the national herd.” Neither USAIP nor APHIS discloses how the program will restrict access to certain federal and state officials or identify the safeguards necessary to protect the data from public disclosure.

Producer liability. Another significant issue is whether a national identification program will increase the possible legal exposure of livestock producers for events that occur after the livestock leave the farm. While livestock producers are responsible for the livestock they produce, and the USAIP does not change any existing liability rules, enhanced traceability may provide the ability to more readily track problems quickly and provide documentation to determine whether appropriate methods and measures were followed to avoid disease contamination. That could result in greater potential liability at the producer level. Conversely, enhanced record keeping and documentation of events concerning livestock can make it easier to defend against baseless charges.

First Amendment concerns. The First Amendment protects the free exercise of religion. While recognized limits apply to the free exercise of religion, particularly when criminal activity is involved, mandatory identification program would conflict with the religious beliefs of numerous groups (most notably the Amish) that participation in government programs violates Scripture teachings. These groups could challenge a mandatory identification program on Constitutional grounds unless exempted from participation.

Fourth Amendment concerns. The Fourth Amendment protects against unreasonable searches and seizures. The proposed surveillance of every premises where even a single animal of any covered livestock is kept and the requirement of RFID of every animal raises significant Fourth Amendment concerns. Indeed, the “premises” that USDA plans to subject to GPS satellite surveillance and RFID includes the private homes of citizens. The U.S. Supreme Court has ruled that the government cannot use sense-enhancing technologies to invade the privacy of citizens’ homes. Likewise the Court has ruled that the sanctity of the home is entitled to greater privacy protections than are industrial complexes. In an agricultural context, the question of what is the “home” for purposes of the Fourth Amendment involves how far the “cartilage” of the home extends. Caselaw illustrates that cartilage can include farm buildings, outbuildings, and associated land areas – anywhere there is a reasonable expectation of privacy. Consequently, a mandatory identification program, unless smaller-sized, non-industrialized family farming operations and hobby farms are exempted, could be challenged on Fourth Amendment grounds.

Fifth and Fourteenth Amendments. The proposed NAIS is the first attempt by the federal government at forced registration in a large, permanent federal database of individual citizens’ real property (the homes and farms where animals are kept) and personal property (the animals themselves). Presently, the only general systems of permanent registration of personal property in the United States involve systems for motor vehicles and guns - two items that are highly dangerous if misused. It is difficult to imagine any acceptable basis for the USDA to subject the owner of an animal (except, perhaps, those that are highly dangerous) to more intrusive surveillance than the owner of a gun or automobile. But, even with respect to a gun, an owner can use the gun on his own property without notifying the government. However, under the proposed identification program, the government would require the reporting within 24 hours and any instance of an animal’s leaving or returning to the registered property. Almost assuredly, a mandatory identification plan could be successfully challenged on Fifth and Fourteenth Amendment grounds in situations involving the constant surveillance of a premises where the owner is only attempting to raise food for the household or for a limited local area and has no intention of distributing the food on a wider scale.

Conclusion. The proposed mandatory animal identification program is fraught with numerous potential legal problems. Perhaps the most fatal flaw of the proposed NAIS is its blatant disregard for fundamental constitutional rights – the right to free exercise of religion, the right of property ownership, and the right to be free from unreasonable governmental searches. Without significant modification of the proposal, the NAIS appears doomed legally. What remains amazing at the present time is the seeming lack of organized protest by the agricultural sector against such government intrusion into private business operations and attack on private property rights.

[QUESTION]

I undersand the fundamental differnces between the US and Canadian cultures as far as litigation. But why not be proactive instead of reactive and set up a system based on the CCIA system where all imformation is confidential and the imformantion is only allowed to be acessed only in the case of a disease trace back. The CCIA is a stand alone agency thus no privacy or property rights problems. No problems so far up here . Sometimes the simplest solution is the right one. Look at a system that is working and try to improve on it. Afterall if you guys don't have a ID system how can you say you don't want produce from a country that doesn't have because they don't have one either? ( south american countries) Kinda hypocritical.

[Sandhusker]

A lot of cattle country already has a system that works.

[katrina]

[cutterone]

OK - let's get real and rational here!

[Mike]

[Sandhusker]

[QUESTION]

N stands for national SH, there is not a national brand registary in the US. How do you trace a non-branded animal, you do know some do not brand. Brands are good for herd identification not individual animals, so yeah an animal from a branded herd you know it came from a certain herd but a simple EID tag and record keeping is more specific. I still do not know why all the resistance to a system basesd on the CCIA.

[Mike]

[Sandhusker]

I realize that not everybody brands. They're the ones who need to do something different, not the guys who do brand. Fix what is broken.

Yes, I also realize a brand is not an individual marker. But, we're being told we need NAIS to stop the spread of transmissible disease like FMD. In that case, they're going to be looking at the entire herd anyway and any other herd that any individual animal from an infected herd or area came in contact with. It won't matter whether it was #756, or #989 - all that matters is that it came from a suspect herd and in that case a brand does the trick.

[Mike]

[QUESTION]

Gee that kinds sounds farmiliar mike. If you go to sell an animal in canada it requies a CCIA eid tag and manifest for brand inspection.
Hey SH what happens if 2 black calves from 2 different states come into a feedlot they have the same brand, but the feedlot is in a state that doen't have brand inspection how do you tell which calf came from where, yeah i know they could be DNA'ed but would not a $2 Eid tag be less costly. The reality is that canada isn't the only country with a tracking system and it is evenutally going to be required to export cattle, it is consumer demand driven. So it is a matter of time . Why not be proactive and form an agency like the CCIA so the program is the most effective and efficient afterall when the government sets something up it tends not to be.