Animal owner's options when faced with mandatory or compulsory aspects of NAIS.

This article is not intended to provide legal advice. Legal advice can only be given by a lawyer admitted to practice in your state who is familiar with your individual circumstances.

At the present time the states vary enormously in the extent of their efforts to implement aspects of the National Animal Identification System (NAIS). At the extreme of states showing little or no appetite for implementing NAIS is Vermont, which recently determined to forego federal NAB funding for 2007. At the opposite extreme are states already implementing mandatory versions of some elements of NAIS: Wisconsin and Indiana, with state versions of mandatory premises registration already in effect; and Michigan, which, effective March 1, 2007, will require RFID tagging of all cattle leaving their premises of origin. (and a Michigan cattle owner would also be required to obtain a federal premises registration number to get the mandatory RFID tags). Between these poles, but leaning toward the enthusiastic embrace of the NAIS system, are states aggressively pursuing so-called "voluntary" premises ID; those states' tactics often include data-mining farm information from pre-existing state livestock programs and then uploading this information, without the knowledge or consent of the animal owners, into the USDA's National Premises Information Repository. An example of this nominally "voluntary" but de facto mandatory approach would be Pennsylvania.

So, while animal owners in Vermont may be breathing a sigh of relief, those in strong-arm premises registration states like Pennsylvania, and even more so those in Wisconsin, Indiana, and Michigan, are wondering what they can or should do to escape having aspects of NAIS imposed on them against their will. To help animal owners think through these issues, let's consider some of the pros and cons of various approaches.

1. Moving to another location. Typically this might be considered by people who want to keep animals without the burdens of NAIS and find themselves living in states that are imposing some level of mandatory premises ID or animal ID. As we see from the diversity of state positions on NAIS, it might well be possible, so long as federal NAIS remains at least nominally "voluntary," to avoid mandatory NAIS by a careful choice of one's state of residence. (The federal so-called "voluntary" approach may well entail many coercive aspects, but that's a topic for another article.) However, it is too early to know for certain where the various states will end up on the question of NAIS, so if possible, it would seem wise to defer for at least a couple of years any major change in location on the basis of NAIS.

One thing to be considered in relation to moving is the possible need for a Certificate of Veterinary Inspection or other state or federal paperwork if you have livestock that you wish to take with you. One could not expect to accomplish an interstate move of a cattle herd or a stable of horses without encountering some government-imposed requirement of health-testing or reporting. Sheep and goat owners may be subjected to scrapie-related requirements. Animal owners who might be considering moving livestock across state lines should carefully investigate such possible requirements, because complying with the federal or state regulations for interstate livestock movement could in itself put you on the radar screen for NAIS enforcement or data-mining.

2. Owning or renting. Probably most people have a desire to own the property where they are farming or homesteading. People often enjoy the sense of permanence that comes with ownership, and the feeling of accomplishment that comes from improving their land and buildings. The advent of NAIS, however, may provide an appropriate opportunity for re-examining the assumed superiority of ownership over renting. If, for example, you strongly object to premises IDs, as a renter, you might feel less of a sense of invasion of privacy by any government imposition of premises registration, since the leased property where you reside is not permanently "your" premises.

Renting also has the benefit of flexibility. If, as mentioned above, it takes several more years to sort out the likely positions of the states on NAIS, a tenant would find it easier to move to another state than a landowner who must go through the complex process of selling and buying a home and land. The flexibility of renting might also be a plus in those states using data-mining to obtain premises registrations without consent. If an unwanted premises ID were assigned to your rented land in a state where premises registration is not technically mandatory, moving to different rented land would provide a means of escaping the unwanted premises ID. (All animal owners, whether landowners or renters, should note that some states which have used the data-mining approach, such as New York and Massachusetts, are now offering livestock owners a means to "opt out" of the assigned premises IDs.)

Some animal owners and landowners have recently raised the question of how possible liability over sources of disease could be impacted by NAIS and specifically, whether landlords would become less willing to rent to animal owners because of the specter of such liability. This is just one of the many considerations that demonstrate how ill-considered the whole NAIS scheme may be. What if, say, you were to sell a calf in 2010, the animal were found to have BSE 10 years later, and it were traced back to your herd or property? Even leaving aside the question of spread of disease, if, say, a slaughterhouse had to recall tons of beef due to the presence of one BSE-positive cow, would the slaughterhouse want to recover its losses from the farmers who had owned the cow over the years, or if the farmers were no longer in business, from present landowners of the premises that had harbored the cow? The USDA is trying to reassure animal owners that premises information may be confidential, but any presumption of confidentiality is very weak at present. In the foregoing hypothetical of the BSE cow, we simply don't know if a court might order the slaughterhouse to be given access to the information about the cow's history of ownership and location. Such situations might well make landlords reluctant to rent to animal owners in general, just the way that landlords today are reluctant to rent to people with dogs viewed (rightly or wrongly) as aggressive.

3. Know the Consequences of Non-Compliance. Animal owners are so strongly opposed to NAIS on so many levels (religious, moral, ethical, social, economic, political) that many say they simply will not comply with NAIS. Non-violent resistance, civil disobedience, and conscientious objection to ill-conceived government programs have a rich and honorable history and sometimes even succeed in dismantling the offensive government program. However, animal owners who are considering non-compliance with NAIS in the face of mandatory rules should carefully consider the consequences they might face.

Some farmers and animal owners are altering their operations to allow them to circumvent NAIS requirements in ways that are perfectly legal. For example, in Michigan, where, as mentioned above, cattle RFID-tagging for animals moved from their present locations will become mandatory by March 1, 2007, some cattle owners are simply finding ways to operate without ever needing to send animals off their premises. (See, e.g., David Gumpert, "Farmers Say No to Animal Tags," BusinessWeek.com, Dec. 19, 2006.) Primarily, this means, in the case of animals for personal consumption, learning to do the butchering yourself; or in the case of animals to be sold to the public for food, it might mean constructing a licensed slaughter facility on the farm or using a licensed mobile slaughtering facility, where available. Carcasses of animals not intended for consumption would be buried or composted on the farm.

However, when most people speak of non-compliance, they mean failing to fulfill NAIS-related requirements even though the failure might run afoul of laws and regulations. An example would be not registering a premises in a state where premises registration is now mandatory. In such cases, animal owners should learn what the maximum penalties are for violations of such laws and regulations. Animal owners also should be aware that the maximum penalties, while perhaps used as a threat, might not be imposed for a small or isolated noncompliance. In some cases, it might be difficult for authorities to detect noncompliance; after all, consider that the number of people who get speeding tickets on a given day are probably a minuscule fraction of the number of people who exceeded the speed limit. For example, in some states, one is supposed to register if one is keeping "exotic birds," but it would be surprising if tracking down illegal canaries and parakeets became a high priority for law enforcement. Even if an animal owner were found to have failed to register a premises, one would expect that some form of warning, and deadline for compliance, would precede any actual fines or harsher penalties. Such warnings might give the animal owner an opportunity to reflect upon and choose the most appropriate alternative, e.g., moving, ceasing to keep animals, or accepting a fine or other punishment.

Conclusion

The very fact that farmers and homesteaders are facing some of the foregoing dilemmas merely because they own livestock, itself demonstrates the absurd and irrational nature of the NAIS program. Consider, for example, that the Michigan program requires both RFID tags and premises ID before you can move cattle off your farm; but there is no apparent independent requirement for premises ID. Thus, a Michigan cattle farmer with breeding stock could keep cattle indefinitely, as long as none left the farm alive, with no involvement in NAIS. However, a next-door neighbor running stocker calves would have to conform to all the individual ID and premises ID requirements. Similarly, the "exotic bird" registration rule mentioned above, which is actually in effect in Wisconsin and Maryland, is definitely not science-based, or even minimally rational; caged indoor birds present no realistic likelihood of commingling with, or transmitting diseases to, either wild or agricultural birds.

So even if you come up with a means of avoiding NAIS that works for you, remember that all animal owners are in this together and the ultimate goal is to end all government involvement in promoting or maintaining any NAIS-related program. (If the animal-agriculture industry wants a tracing program, let them do it themselves, on their own dime, and with no penalties for non-participation.) Certainly it's a very positive development if some animal owners can remain free of NAIS, but if you are among those fortunate people, please continue to take part in freeing all animal owners from any forced or coerced participation in NAIS.

MARY ZANONI, PH.D., J.D.

PO Box 501, CANTON, NY 13617

315-386-3199 * [e-mail]