Beyond Raw Milk: The Farm-to-Consumer Legal Defense Fund Challenges USDA and MDA on NAIS

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.

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20 Comments on "Beyond Raw Milk: The Farm-to-Consumer Legal Defense Fund Challenges USDA and MDA on NAIS"


Gary Cox
May 15, 2008

david,

time to cook three days’ rations and saddle up. this will be a long one.

anna
May 15, 2008

Please do not forget the health risks:
here is ref:
http://www.organicconsumers.org/articles/article_7570.cfm

Taaron Meikle
May 15, 2008

Yes, we are in this for the long haul! We cannot do this without the support from our consumers and our farmers! Thank you for the article David.

SharonZ
May 16, 2008

The info made its way around the anti-NAIS groups like wild fire! I hope FTCLDF will see a huge jump in donations today. I read the 26 pages and Gary, I have to tell you, it brought tears to my eyes. Thanks to you all. I know you’ve been working on this for some while and it has been a battle.

On another note. My blog had a hit from state.pa.us on the search term linzey raw milk. From a comment on my own blog we find that
http://henwhisperer.blogspot.com/2007/09/we-will-not-comply-two-nais-resistors.html
Painted Hand Farm http://paintedhandfarm.blogspot.com/
said…

People are completely unaware of the truth of the Mark Nolt matter. He does not only sell milk and products direct from his farm. He goes to public farmers market and sells THOUSANDS of dollars of raw milk. Secondly, it was not his raw milk that was filthy, but his value-added products such as his raw milk butter–some of the worst that had ever been tested by Bill Chirdon. And third, Nolt pioneered the use of labor contracts, which were blessed by PDA as long as the farmer held a raw milk permit. That labor contract was written by attorney, Tom Linzey of the Community Environmental Legal Defense Fund (www.celdf.org), but chose instead to eschew this in favor of breaking the law. There are currently 76 farmers in Pennsylvania legally producing raw milk. Many of them are even smaller operations than that of the Nolts. His actions are nothing more than a slap in the face to those who take the time and effort to LEGALLY and CLEANLY produce raw milk.
————
I have to wonder if they are going to go after Mr. Linzey now,

milkfarmer
May 16, 2008

……wow,

kings bishop to g5+

Steve Bemis
May 16, 2008

Anna – your concern, among many others, is addressed in the 25-page version which is on the FTCLDF website.

Gary Cox
May 16, 2008

henwhisperer,

i don’t get all the credit. our newest board member, marc stimpert, wrote the brunt of the letter. i just massaged it a bit! this was definitely a collaborative effort by a whole lot of people. :)

Bob Hayles
May 16, 2008

I’m glad to finally see our side playing offense rather than defense.

Bob Hayles

SharonZ
May 16, 2008

Gary, thanks for acknowledging Marc. He’s a fine lawyer. We’re working on ramping up donations for the fund. I hope that you have seen a huge jump in donations today and I want to keep that rolling. Would you email me henwhisperer at gmail dot com please? I’d like to discuss fund raising with you. Thanks, Sharon

Blair McMorran
May 17, 2008

I just was blown away by that letter of intent. It had everything I’ve learned (and wanted to articulate) in the last 8 years summed up in one punch. God bless you FTCLDF!!!

I’ve sent messages out all day. Yahoo groups, my elists, personal emails. Yet I’ve hardly seen a blip on the radar. I too like Henwhisperer, want to know if this part of the world is awake. Has it made a ripple yet?
-Blair

Steve Bemis
May 17, 2008

It is not a simple read – I’m not surprised that people need to digest it. As complicated as it is, the writing is crystal clear, and it tells a powerful story about how our government has run roughshod over its own rules.

I would be surprised if the agencies do/say anything; it’s highly unlikely, with $118 million spent so far. They’ll probably just sit tight to see how serious things really get. Basically, you can’t sue the government in this situation until you give them this kind of a notice. So this is the first step. We will need lots of patience, resources and time to see it through to its proper end.

C2
May 17, 2008

Steve Bemis,

I’m totally confused here…why is animal identification controversial? I guess there is the invasion of privacy, but a quick search revealed that big ag industry is against the program too (or wants to keep the information secret).

Thanks and sorry for my ignorance in case this has been covered already.

C2

Blair McMorran
May 17, 2008

C2, You do not see? Shift forward.Try it; you’ll like it.

Steve Bemis
May 17, 2008

C2 I would recommend reading the Notice at http://www.farmtoconsumer.org. You’ll also find the Press Release and a summary of highlights from the Notice. My brief and incomplete summary: First, the government is in the process of spending your tax dollars ($118 million so far) with no Congressional authorization, and with virtually none of the regulatory rule-making having been complied-with. If you don’t mind regulators making things up and spending tax dollars as they go along, then I wouldn’t be worried. Second, the program is premised on the need for animal disease control, but the present programs for disease control have been successful…..so we need another one?? duh. Third, since there’s been no rule-making, there has been no cost-benefit analysis so that, if there really were a need for animal disease control, we don’t know if this one would work. We’re pretty sure that a huge data-base in the sky with lightning tracking speeds (a central premise of the whole thing) is simply unsuited to a disease like TB, to take just one example (as in Michigan). First, TB is endemic in deer and other wildlife in Michigan, and this root cause is totally ignored under NAIS. Further, in TB the times for infection, dormancy and eventual manifestation of the disease are measured in years, not hours (IF it manifests – it can lie dormant for the animal’s entire life, and not manifest either as illness or as a risk to other animals or humans, in milk or otherwise). Fourth, the burdens of the program are disproportionately on small farmers, who must RFID every animal, while there is an exception for "groups" of animals which never leave a facility, such as a CAFO. Fifth, since the program is disproportionately burdensome on small farmers, it fosters industrial ag with its heavy impacts on the environment, health of animals and humans, etc. etc. Sixth,…..you get the picture.

I’d be interested in your citations where you’ve found big ag is against it. Maybe they will join FTCLDF in opposing this program, although I’m not holding my breath. Seriously, take the time to read the Notice. I think you’ll find it very interesting.

concerned2
May 17, 2008

Steve,
Thanks for the information. The opposition I heard related to keeping data collected by the government on farms and animals confidential and the costs of the program. But, digging around it looks like the very large industry groups (AMI, etc.) support NAIS now. I stumbled across the links below trying to find more–maybe related to bullet 10 below.

10. Privacy and property rights. NAIS would create the first permanent federal registration system for land and personal property. It would require reporting of normal, daily events in peoples lives

Farm Bill Blocks Court-Ordered Release Of
Subsidy Program Data Under FOIA

http://www.mulchblog.com/2008/05/farm_bill_blocks_court-ordered.php

A provision secretly tucked into the Farm Bill Conference Report (Sec. 1619, "Information Gathering") nullifies a recent, major federal appeals court decision under the Freedom of Information Act that ordered USDA to make public large amounts of data crucial to monitoring the economic and environmental impacts of multi-billion-dollar farm subsidy and conservation programs.

Info of Farm Bill Federal FOIA Exemption

http://foiadvocate.blogspot.com/2007/11/info-of-farm-bill-federal-foia.html

BARRE, MA – The Northeast Organic Farming Association/Massachusetts Chapter, Inc. (NOFA/Mass) called upon Senators Kerry and Kennedy this week to reject a provision in the 2008 farm bill, which recently passed out of the Senate Agriculture Committee, that would criminalize disclosure of information from the USDA’s new proposed program, the National Animal Identification System (NAIS).

Steve Bemis
May 18, 2008

c2 – last I heard, the confidentiality provision was out of the farm bill. It should stay out, since Congress should not be seen to be in effect, sanctifying something that is so illegal in its implementation thus far.

Concerning secrets, my own personal theory (note: this is not part of the FTCLDF Notice to Sue) is that Big Ag would find NAIS very handy, should the day of cloned animals come to pass commercially, to prove the genetics (i.e., the property, in the cloned-animal=intellectual-property sense) of a particular animal, thereby making it a handy infrastructure of proof by which the "owners" of the genetics from a cloned animal could prove "infringement" of their property rights. Monsanto does this all the time by suing farmers into whose field some neighbor’s GMO seed has drifted. Just as surely as seed drifts, so do bulls get through fences and "into" the neighbors cows – it happens all the time. I recently helped round up a bull (who went off to slaughter, since the offending neighbor consistently was unable to keep the bull fenced-in) whose mean-spirited genes were not appreciated by the farmer whom I assisted. Picture this kind of tiff transformed by cloning and tracking systems, so that if the bull contains genes from a clone and is thereby subject to a limited license, Presto, lawsuit, and NAIS would be the way to prove it. The farmer whose cows ended up with that trespassing bull’s genes would not just suffer actual damage (as with my mean-spririted example, namely the herd being degraded by undesirable traits), he would instead suffer the monetary insult of having the offending farmer’s licensor suing for infringement. Brave New World. Aside from the obvious (to me anyway) advantages of a universal registration system by which such genetics (property rights) could be traced, I believe the patenting of life-forms is not just immoral, but a sacrilege. No human being (or corporation) "owns" life.

Steve Smith
May 18, 2008

From the animal-diseases-have-to-be-contained-and-eradicated point of view, NAIS is much too limited in scope. For instance, hoof and mouth disease is not only transmitted animal-to-animal (ignoring Albert Howard’s observations) but also through the air, water, people and vehicles that have contact with an infected herd (or contact with UK labs). Therefore, putting RFID chips in animals is insufficient for tracking the vectors transporting diseases out of infected herds. There is a clear need to expand the NAIS database and ID system.

Unique, identifying numbers and RFID chips need to be assigned to all farmers, farm or CAFO employees, veterinarians, milk haulers, hoof trimmers, feed deliverers, USDA and state inspectors and regulators, fieldmen, organic certification inspectors, and any visitors that may set foot on a farm that may some day test positive for a disease. Since these humans are much more mobile than the animals, it would be necessary to place GPS trackers in any vehicles that they may use and the NAIS database must be sized to accommodate position data of these vectors on a fairly frequent basis. This data could be augmented by storing the tracking of the cell phones that many of these vectors carry, though the cell phone positions would not be sufficient since the phones run out of charge or get left in odd places.

The air flowing over farms and CAFOs, which does carry disease organisms, could initially be tracked meteorologically by estimating air parcel trajectories from routine weather analyses and weather radar data. As NAIS technology and comprehensiveness improves, it might be possible to continuously emit a plume of traceable dust, such as the minute traceable particles placed in explosives to enhance forensic analyses of explosive crimes, from a suitable stack or chimney near the several herds.

Similarly, there will need to be tracers to put in the rain water running off the backs and noses of the herds (and in the effluents from larger operations) that could be monitored and accumulated in the NAIS disease tracking database.

Unfortunately, much of this tracking cannot be accomplished until much more powerful satellites are in place to query the many RFID tags and air and water masses flowing between farms and the transmitters in the RFID chips will need to be improved to send the relevant data back to the monitoring satellites. The positive side to a NAIS expansion is that such a large database will require many technical employees to maintain the hardware and also require many skilled analysts to map, study and model the various transmission routes. Gotta stop here or I might talk myself into giving up farming and getting in on the ground floor of the NAIS Enterprise.

Bob Hayles
May 18, 2008

Steve…I know George Orwell Wrote "1984", but you seem to have a pretty good start on a sequel.

Bob Hayles

concerned2
May 18, 2008

Steve Smith:

Great mix of sarcasm and science (principles of disease transmission). DC might like your proposal. And, it could provide a job if kicked out of public health for moving slightly to the raw milk side :-) The requirement for smaller farms to ID individual animals while larger groups of livestock get a group status seems influenced by powerful corporations.

C2

wilson
May 19, 2008

Mr. Bemis is right on the money with his comments about the disproportionate impact this will (and is designed) to have on small farmers, who are beginning to become pesky to big ag.Speaking for myself, I find NAIS so onerous that it might be the straw that would move me out of farming. The comments on cloning – which Monsanto is currently so hot on – are also very insightful. One thing that is important to remember also is that NAIS has nothing to do with animal welfare or preventing disease or consumer safety or any of the things it purports to be about. All of which sound wonderful of course. Who wants to come out and take a stand against consumer safety? Nobody.

NAIS is about money, pure and simple, and it is at bottom about Mad Cow and beef. When Johannes was ag sec he stated repeatedly, over and over, that his number one priority was re-opening foreign markets to American beef, which had quite rightly been banned by a number of countries in the wake of the discovery of Mad cow in the US.

A big part of re-opening those markets was demonstrating a move toward a national id which was and is required by many foreign countries. The big meatpackers want to put the burden of that system on producers. The big producers want to shift the burden to the little producers, and have the power to write that into the legislation. Thus the CAFO exceptions. The little producers – who don’t ironically, ever export beef, they only serve local markets as a rule – pay the freight, have no one to shift the burden to, don’t reap ANY benefit from the re-opening of foreigh markets, and have to deal day-to-day with regulations so onerous and time-consuming (the average cow in this scenario would have to have its movcements monitored much more closely than any sex offender in this country) that many would be forced out of business. Or would not find it worth the headaches to continue.

This of course would be a vicious circle: fewer producers, giving consumers fewer choices, and allowing the big producers to control the food supply even more dangerously.