FARM-TO-CONSUMER LEGAL DEFENSE FUND et al v. SCHAFER et al

Filing 54

RESPONSE re 50 MOTION to Dismiss Niewendorp's Claims Against the USDA filed by DAN NOLT, GREG NIEWENDORP, FARM-TO-CONSUMER LEGAL DEFENSE FUND, ROBERT ALEXANDER, JOE GOLIMBIESKI, ROBERT KEYWORTH, GLEN MAST, ANDREW SCHNEIDER, ROSEANNE WYANT. (Cox, David)

FARM-TO-CONSUMER LEGAL DEFENSE FUND et al v. SCHAFER et al

Doc. 54

BEFORE THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Farm-to-Consumer Legal Defense Fund, et al. Plaintiffs v. U.S. Department of Agriculture Ed Schafer, Secretary, et al. Defendants : : : : : : : : : : : Case No. 1:08-cv-01546-RMC Judge Rosemary M. Collyer

PLAINTIFFS' RESPONSE TO USDA'S MOTION TO DISMISS GREG NIEWENDORP'S CLAIMS AGAINST USDA Plaintiff Greg Niewendorp agrees to dismiss his case without prejudice, as Plaintiffs' counsel notified USDA prior to the filing of USDA's motion. However, the remaining Plaintiffs contest USDA's argument in its Motion to Dismiss Greg Niewendorp that all of the Plaintiffs' claims under the Religious Freedom and Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., should be dismissed simply because Mr. Niewendorp no longer owns cattle. USDA continues to ignore the full scope of Plaintiffs' claims under RFRA, as well as the policies affecting all of the Plaintiffs. To begin, USDA continues to ignore Plaintiffs' argument that it is more than the use of an RFID that imposes an undue burden on Plaintiffs' exercise of their religion. NAIS burdens Plaintiffs' religious faiths by forcing them to accept technology, forcing them to interact with the world, threatens their existence as farmers, makes them take the "mark" of the beast, and deprives them of their dominion over animals. See First Amended Complaint, paragraphs 8-13, 15,

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329-335. Plaintiffs' religious infringement begins with the assignment of the premises identification number to Plaintiffs' land. USDA plays a direct causal role not only in the assignment of national PINs to the Plaintiffs' property and their animals but also in the holding of Plaintiffs' data in a national database. By definition, these infringements on the Plaintiffs' religious beliefs could not occur without federal government involvement, and neither agency has provided a religious exemption to this requirement. In addition, all cattle owners in Michigan must use RFIDs, whether or not they are located in the MAZ or MAAZ or the accredited free zone. As clearly stated by the March 1, 2007 "Order" of MDA in the very first sentence under the heading "All Zones within Michigan," "Effective March 1, 2007, all cattle must be identified with official RFID electronic identification eartags prior to movement from a premises within Michigan, unless exempted by the director." See MDA Appendix, pg. 17. Thus, USDA is not correct that Mr. Niewendorp is the only Plaintiff who is required to place RFIDs on his cattle. Under Michigan's supposed religious exemption, although the tag can be applied at the sales barn if Plaintiffs sell their cattle at a public auction, they still must pay for the tag and they still must have their property assigned NAIS numbers. Moreover, under the Order, Plaintiffs cannot sell their animals under private treaty or take them to other properties without tagging them, nor can Plaintiffs buy new or replacement cattle without an RFID tag. Therefore, this socalled exemption does not address Plaintiffs' religious objections.

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Thus, USDA's argument that all of the Plaintiffs' claims under RFRA should be dismissed lacks merit. For these reasons, Greg Niewendorp should be dismissed without prejudice and without reference to the remaining Plaintiffs' claims. May 28, 2009 Respectfully submitted, /s/ David G. Cox David G. Cox (D.C. Bar No. OH 0020) 4240 Kendale Road Columbus, OH 43220 [e-mail] Phone: [phone] Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on May 28, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Peter T. Wechsler [e-mail] Trial Attorney United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Counsel for USDA and James E. Riley [e-mail] First Assistant Danielle Allison-Yokom [e-mail] Assistant Attorney General Michigan Department of Agriculture Environment, Natural Resources and Agriculture Division 525 West Ottawa Street 6th Floor Williams Building Lansing, MI 48913 Counsel for MDA /s/ David G. Cox David G. Cox (D.C. Bar No. OH 0020)

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