bigstockphoto_Brown_Cow_689606.jpgYesterday, a reader wrote me to express concern “that all the attention that has been placed on raw milk has pulled people’s attention away from the NAIS (National Animal Identification System) issue. And I have begun to wonder if this isn’t being used as one of the ways to sneak the NAIS stuff through in the farm bill while people are otherwise occupied with another issue.”

Well, I may have neglected NAIS in recent months, but the Farm-to-Consumer Legal Defense Fund hasn’t. Shortly after I received the reminder, the FTCLDF made its first foray beyond raw milk cases, announcing its intention to file a major suit against the U.S. Department of Agriculture and the Michigan Department of Agriculture over enforcement of NAIS in Michigan.

USDA and MDA have cooperated over the last few years to make Michigan in effect a prototype for the full NAIS program of premises and animal regisration. I wrote extensively about the MDA’s grueling effort to implement NAIS in Michigan via its campaign to force cattle farmer Greg Niewendorp to place RFID tags on his animals—ostensibly to control bovine tuberculosis. (For background, search this blog under “Niewendorp.”)

Under rules of engagement in these types of things, the FTCLDF must first file a Notice of Intent, which asks the USDA and the MDA to “immediately suspend the funding and implementation of NAIS” and to “fully and fairly examine” whether NAIS is really necessary. If the government refuses to go along with the FTCLDF request to halt implementation of NAIS and re-evaluate the program (which, given the huge commitment already made, seems highly unlikely), then the fund will push ahead with a suit in a federal or state court, on behalf of Michigan farm owners affected by NAIS and the bovine TB program.

In a 25-page Notice of Intent document explaining its reasoning, the FTCLDF argues that the federal government “has been taking concrete actions to implement NAIS for several years now. For example, USDA has been providing conditional funding and technical support to States that implement the program. Another strategy has been to make NAIS mandatory through existing, mandatory animal disease control programs, as has been done with the Michigan Department of Agriculture’s (MDA) bovine tuberculosis (‘TB’) program.”

The FTCLDF accuses USDA of violating federal rule-making policies, as well as federal environmental policies. It also accuses both the USDA and MDA, in setting up NAIS in Michigan, of preparing to violate the fourth and fifth amendments of the U.S. Constitution.

“Not only has Michigan gone way beyond the bounds of scientifically-based TB eradication in cattle, but by its terms the requirements have been broadened to cover all livestock. Specifically, the MOU {memorandum of understanding with USDA} also requires MDA to ‘[u]tilize State authority to randomly intercept and inspect vehicles that are transporting livestock on public roads within Michigan for compliance with State and Federal split state status requirements and this MOU.’ The Animal Health Protection Act expressly states that USDA does not have authority to stop and inspect vehicles transporting livestock without a warrant or probable cause to believe that the vehicle is carrying an animal which may be regulated or under quarantine. 7 U.S.C. § 8307(b). This constitutes a possible violation of the Animal Health Protection Act and the Fourth and Fifth Amendments to the United States Constitution which protect against unreasonable searches and seizure and the taking of private property without just compensation.”

The FTCLDF in its statement also begins to make a connection to raw milk, and other nutrient-dense foods, by arguing at length that small farms that produce such products are much less polluting than large agribusiness operations. It adds:

“There are also many health benefits provided by small farms. Substantial scientific evidence demonstrates that grass-fed meats, eggs, and dairy products provide health benefits that outweigh similar products from animals fed grain in CAFOs. Consumers also choose locally produced foods for what many believe to be the superior culinary value of fresh, locally grown or raised foods. The FTCLDF is dedicated to preserving and protecting the right of all Americans to make informed choices regarding their health and well being and the food they eat, and to do so in a manner that is free from burdensome governmental intrusion.”

In the final analysis, the FTCLDF is doing something similar to what it’s been doing in its cases challenging state restrictions on distribution and sale of raw milk: demanding that judges review the arbitrary rules, arbitrarily enforced, by arbitrary bureaucrats in the hip pockets of agribusiness.