October 31, 1997
Secretary Daniel Glickman
Department of Agriculture
14th Street and Independence Avenue, SW
Washington, DC 20250
Dear Secretary Glickman:
On behalf of the nationwide membership of The Fund for Animals (The Fund) I submit the following comments on the "Wyoming Station Review" (Station Review).
As you know, the Station Review and its recommendations have generated enormous controversy among the affected cattle producers, state and federal agencies, and environmental and animal protection interests, including The Fund. The Fund believes that this controversy is appropriate and deserved as a consequence of the underhanded and inappropriate process forced on the State of Wyoming by the U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) working in concert with this nation's State Veterinarians. The Station Review's recommendations, or requirements, imposed on some of Wyoming's cattle producers represent a substantial economic and practical burden which are contradicted by the content of the Station Review itself, are in violation of federal and state law, and are not based on sound scientific evidence or reasoning.
As you know, many agencies have criticized the Station Review for its technical inaccuracies. The Fund agrees with these criticisms. However, The Fund also asserts that the Station Review, and the process used to formulate the Station Review, are even more fundamentally flawed and are in conflict with several federal and state regulations. Specifically, The Fund believes that:
Because of these legal inadequacies, in addition to the technical errors and lack of valid evidence to support the recommendations of the Station Review, APHIS must retract the entire Station Review and reassure Wyoming of its brucellosis- free status. APHIS has no authority to do otherwise.
In 1995, based on threats made by the USDA to the brucellosis-free status of the State of Wyoming due to the presence of potentially exposed or infected bison and elk in the State, an interagency working group was established with the express purpose of developing interim management procedures for bison and elk to address the USDA's concerns. In November 1996, after nearly 18 months of deliberations, the Wyoming Game and Fish Department (WGFD), in compliance with the Wyoming Administrative Procedures Act (WYAPA), solicited public comment on draft Interim Procedures. This comment was solicited both in writing and through three public meetings.
As a result of this process, it became immensely clear that the public, including cattle producers, were not at all satisfied with the draft Interim Procedures which, among other things, proposed additional testing of cattle herds in Teton, Sublette, and a portion of Lincoln County to augment existing Brucella abortus surveillance efforts. Many of the producers argued that these additional testing requirements represented an unnecessary economic and practical burden to their business particularly in light of their vaccination practices and the fact that wild elk had intermingled with their stocks for years with virtually no evidence of bacteria transmission.
In response, the agencies involved in the working group, including APHIS, recognized that the Interim Procedures would need to be modified to address some of the public's concerns. Upon revision, the WGFD intended to again solicit comments from the public on the revised Interim Procedures.
Prior to initiating this revision process, however, in February 1997, the State Veterinarians of Alabama and Nebraska distributed a letter to their colleagues in the remaining 48 states encouraging them to impose restrictions on Wyoming, Montana, and Idaho cattle if they were not satisfied with the actions being taken by these states to address wildlife potentially exposed or infected with B. abortus. This action was apparently initiated, in part, because the State Veterinarians were misled into believing that the Interim Procedures process had been terminated due to adverse public reaction to the initial plan.
Shortly thereafter Alabama and Oregon imposed restrictions on Wyoming's cattle. The remaining western states and possibly some eastern states were prepared to follow suit. To prevent that from occurring, with reluctance and only as a result of coercion by the State Veterinarians, Wyoming agreed to ask APHIS to conduct a station review to assess Wyoming's compliance with the provisions of the National Brucellosis Eradication Program (NBEP). That review was conducted by a 5-member team of present and former APHIS officials during the first week of May 1997.
In July 1997, the Station Review was completed and released to the State of Wyoming and the public. The Station Review contained ten "recommendations" regarding Wyoming's compliance with the NBEP, including increased cattle surveillance activities in 6 Wyoming counties (Teton, Lincoln, Sublette, Park, Fremont, and Hot Springs). These so-called recommendations, however, as will be further discussed below, are actually federal requirements which Wyoming has to impose on its producers to prevent sanctions on its cattle by other states.
Thus, what began as a unified interagency effort to develop, with substantial public participation, acceptable brucellosis management procedures has devolved into a federal mandate imposed on Wyoming and Wyoming producers and which completely removes the public from having any voice in the decision-making process.
Livestock disease control and eradication efforts in the U.S. are administered and exercised by the USDA and the states. These parties have cooperated in an effort to eradicate brucellosis from domestic livestock since the mid-1930s. Federal regulations governing this program are codified at 9 C.F.R. $ 78.1 et seq. The Uniform Methods and Rules for Brucellosis Eradication (UM&R) provide additional guidance for this program.
Under the federal regulations, APHIS has the authority to designate states as brucellosis-free, Class A, Class B, or Class C based solely on whether Brucella abortus is present in "cattle" or "domestic livestock." A brucellosis-free designation means that no Brucella abortus has been detected in cattle or domestic livestock for at least 12 months. Id. at $ 78.1. To lose this designation, B. abortus must be found in cattle or domestic livestock. Id. at $ 78.40. Wyoming was designated as brucellosis free in 1985.
APHIS regulations do not allow it to base a state's designation on the presence of B. abortus in free-ranging wildlife. Moreover, APHIS maintains no legal authority over free-ranging wildlife potentially exposed or infected with B. abortus. This lack of authority has been clearly demonstrated in the State of Wyoming where, in 1985, the state was declared brucellosis free despite the knowledge that free-ranging elk and bison were both known to have been exposed or infected with B. abortus. If APHIS had authority over such animals, Wyoming would never have been designated as brucellosis-free.
This lack of authority has also been confirmed by the courts and by the USDA General Counsel. In Parker Land and Cattle Company v. United States, 796 F.Supp. 477, 486, (D.Wyo., 1982), Judge Brimmer held that "the regulations contained in Title 9 of the Code of Federal Regulations also do not apply to wildlife as it would not be physically possible to regulate wildlife in accordance with these directives."
The USDA is well aware of its lack of authority over free- ranging wildlife. In a 1990 legal memorandum regarding the authority of APHIS to promulgate regulations to restrict the interstate movement of aquatic plants and animals that may pose a risk to the health of aquaculture operations, Assistant General Counsel Ronald D. Cipolla determined that APHIS may require new legislation to gain authority over animals, including domestic animals, which fall outside of the narrow interpretation of "livestock" which APHIS had established. If APHIS can't make such a leap with aquatic animals, then surely it also could not suddenly decide, without legislation, to include wild, free- ranging animals under its authority.
The purpose of the Station Review is to evaluate a state's compliance with the NBEP. Since regulations implementing the NBEP only provide APHIS authority over cattle and domestic livestock, then the scope of the Station Review must be limited to these species. In this case, however, APHIS went far afield of its authority and considered the presence of B. abortus in free ranging elk and bison in crafting its restrictions on Wyoming's cattle producers. Indeed, the stated purpose of this Station Review was to "assess the risk of cattle contracting brucellosis from affected elk and bison populations within the State; to evaluate measures being taken to prevent exposure of cattle to affected wildlife; and to evaluate long range options for the control and ultimate eradication of brucellosis from wildlife within the State" (Station Review at 1).
Had APHIS conducted a legal evaluation of Wyoming's brucellosis eradication program, its conclusion could only have been that Wyoming's cattle and domestic livestock are brucellosis free and that the state is in full compliance with the NBEP. Instead, in its continuing efforts to illegally assert non-existent authority over free-ranging wildlife, APHIS relied upon the presence of B. abortus in feedground and non-feedground elk and in free-ranging bison to impose unnecessary and illegal restrictions on Wyoming's cattle producers. Though APHIS may believe that these animals pose a potential, yet unproven and unlikely, risk of bacteria transmission to cattle and domestic livestock, the regulations do not allow it to base a state's designation on the presence of B. abortus in wildlife. Thus, contrary to the assertion in the Station Review (page 11), the mere fact that "known infected animals are in the state" is irrelevant in this case since those animals are wild, free- ranging animals over which APHIS has no authority.
Because of the clear lack of legal authority, these restrictions should be immediately withdrawn in their entirety and Wyoming should be congratulated for its continued excellence in complying with the NBEP and maintaining its brucellosis free status.
As previously explained, the Station Review has resulted in the imposition of additional bacteria surveillance testing requirements on cattle producers in six Wyoming counties. In so doing, APHIS has effectively downgraded these counties to Class A status without officially doing so through rulemaking as required by the Administrative Procedures Act (APA). 5 U.S.C. $ 553 et seq. APHIS's regulations do not permit the imposition of such additional testing requirements without redesignating the State or the counties in question as Class A or lower.
The regulations provide APHIS with the authority to split designate a state at the county level. 9 C.F.R. $ 78.1. If APHIS had any interest in complying with its own regulations, it would have to exercise this split designation authority in this case.
As previously stated, however, the regulations only authorize the downgrade in status if brucellosis is confirmed in cattle or domestic livestock. This is not the case in Wyoming since the restrictions imposed by the Station Review are based entirely on the presence of B. abortus in free-ranging wildlife. Since APHIS's authority does not extend to free-ranging wildlife, it has no legal justification for enacting such a downgrade for one or more Wyoming counties at this time. Even if it had such authority, the downgrade in status must be achieved through the rule-making process. Instead, in this case, APHIS is illegally attempting to redesignate these six counties as Class A without complying with the rulemaking procedures contained in the Administrative Procedure Act.
The Federal Advisory Committee Act (FACA) was promulgated in 1972 to control the growth and operation of the "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C., App. 2, $ 2(a). The statute was specifically intended to protect against undue influence by special interest groups over government decision-making.
FACA requires that committees established and/or utilized by a federal agency to provide advice on a certain issue must be formally chartered, id. at $ 9(c), that the membership of the committee must be "fairly balanced in terms of points of view represented...," id. at $ 5(b), that its meetings must be open to the public, id. at $ 10(a), and that the "records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying." Id. at $ 10(b).
In this case, the committee responsible for developing the Station Review clearly constitutes an advisory committee as defined in the law, requiring compliance with FACA.
First, APHIS created the Station Review team. Second, this team was comprised of four APHIS officials and one private citizen (a retired APHIS official). Third, the purpose of the Station Review was to provide APHIS with advice as to whether Wyoming was in compliance with the NBEP. And, fourth, APHIS is utilizing the advice of the Station Review team to require changes in Wyoming brucellosis eradication regulations.
Thus, there is no question that the Station Review team and process should have been subject to the provisions of FACA, its meetings should have been open to the public, and materials considered by the Station Review team should have been available to the public. Since none of this occurred, the Station Review is in violation of federal law and cannot be relied upon by APHIS in assessing or determining Wyoming's compliance with the NBEP. Either APHIS has to conduct a second Station Review in compliance with FACA or it has to recertify Wyoming as brucellosis-free in its entirety and require no new testing standards on Wyoming's cattle producers.
The National Environmental Policy Act (NEPA) is the national charter for the protection of the environment. 40 C.F.R. $ 1500.1(a). NEPA regulations require federal agencies to consider the environmental impacts of their actions before implementation.
An action, as defined by NEPA, includes "new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." Id. at $ 1508.18(a). The Station Review process and resulting requirements constitute a federal action which must be subject to NEPA review. The mere fact that Wyoming is implementing the Station Review requirements does not render meaningless the substantial role of the federal government in this process nor does it make the action any less federal.
Indeed, there can be no question that this is a federal action for the following reasons:
The Station Review will clearly impose an unnecessary economic burden on hundreds of cattle producers in the six county areas subject to the Review's requirements. It will also, and indeed already has, adversely affected the marketability of Wyoming cattle by creating an undeserved perception that Wyoming cattle are potentially diseased. In addition, free-ranging wildlife may also be impacted by the Station Review as a result of increased pressure by livestock interests on state and federal wildlife management agencies to eradicate B. abortus from wildlife or to severely restrict the movements of potentially exposed or infected wild animals.
Consequently, until and unless APHIS subjects the provisions of the station Review to NEPA review, it cannot require Wyoming to implement the Review requirements.
As previously explained, the recommendations contained in the Station Review are indeed requirements imposed by APHIS which Wyoming must meet. Otherwise, it faces the high probability of sanctions on its cattle imposed by other states. Because of the mandatory nature of these recommendations, Wyoming has initiated a rulemaking procedure to amend its existing brucellosis regulations to address the requirements contained in the Station Review.
Wyoming's rulemaking process is conducted in accordance with the State's Administrative Procedure Act. WS $ 16-3-101. Like its federal counterpart, Wyoming's APA requires the State to publish notice of its proposed rulemaking, to solicit public comment on its proposal, and to consider those comments before publishing a final rule. For the process, particularly the public comment process, to be meaningful the State must have the flexibility to amend the proposed rule in response to concerns expressed by the public.
In this case, however, since the Station Review provisions are mandatory and are not subject to modification by the State, the rulemaking process, including the opportunity for public comment, is meaningless. Even if Wyoming received hundreds of substantive comments opposing the proposed rule, it cannot consider these comments in any meaningful way because alteration or modification of the proposed rule is out of the question. The Station Review, and the process used by APHIS to formulate the Station Review, therefore, not only cuts the public completely out of the decision-making process involving rules that directly and indirectly affect many members of the public, but it also forces Wyoming to violate its State APA to satisfy APHIS and the state veterinarians.
In addition to our broad concerns delineated above, The Fund also has several specific concerns about the content of the Station Review. The Fund believes that the Station Review is poorly written, contains inflammatory rhetoric that has served only to further polarize various interests involved in the ongoing debate over wildlife and cattle management in the GYE, includes numerous contradictions and blatant errors, and that it fails to provide valid evidence to support many of its factual statements. A sampling of these inadequacies are provided below.
If, however, APHIS concurs with these conclusions in the Station Review then it would appear that APHIS has no legitimate role to play in the ongoing controversy surrounding the management of wildlife, cattle, and B. abortus in the GYE. If a wildlife-caused infection in domestic cattle is not grounds for revoking a state's brucellosis-free status, then the only remaining risk to Wyoming's producers is through sanctions imposed on their cattle by other states.
It is far more sensible to enforce existing backtagging requirements on markets, stockyards, and producers selling, receiving, or moving Wyoming cattle than to impose unnecessary, expensive, and burdensome herd testing requirements in a six county area. If, as the Station Review suggests, the backtagging issue is one of the principal weaknesses in the overall program then changes to this system are far more reasonable and fair than imposing testing restrictions on many of Wyoming's producers.
What the Station Review does not recognize or suggest is that by closing these allotments or modifying the dates on which livestock are permitted to be returned to these allotments, the temporal and spatial overlap of these different species can be completely eliminated thereby preventing any chance of bacteria transmission, assuming such transmission is even possible. Again, had the Station Review team members thought beyond the narrow scope of disease control and considered other means of reducing, if not eliminating, the perceived chance of bacteria transmission, it could have recommended far more substantive and permanent mechanisms to prevent transmission.
Both the NER and GTNP are involved in efforts to address B. abortus in elk and bison. Both parties participated in the development of a long-term management plan and environmental assessment for the Jackson bison herd which was recently finalized. The GTNP has approved various studies, currently being implemented, to gain a better understanding of the impact of B. abortus on bison. In addition, both parties are active participants in the ongoing efforts by the Greater Yellowstone Interagency Brucellosis Committee to resolve this issue. The mere fact that neither party may be doing precisely what APHIS believes it should do in response to this issue, is not sufficient grounds to claim that nothing is being done. Both parties are engaged in efforts to address this issue and both parties should be commended for the steps and efforts that they have made to date.
The Station Review, as described above, contains a number of technical inaccuracies, is not based on valid scientific evidence, and is in violation of a myriad of federal laws. Indeed, the stated purpose of the Station Review is far beyond the legal authority of APHIS to regulate diseases in animals. As a consequence, the Station Review in this case is not a constructive mechanism to aid Wyoming in maintaining its brucellosis-free status. Instead it is a political javelin unnecessarily and inappropriately hurled into the ongoing controversy surrounding wildlife, cattle, and B. abortus management in the GYE for the purpose of increasing pressure on wildlife management agencies to expedite their resolution of this controversy.
As a consequence of this process, which was forced upon the State of Wyoming by APHIS and the State Veterinarians, many Wyoming cattle producers are being unfairly and unnecessarily targeted with increased restrictions on their cattle. Indeed, the Station Review has created a situation where the State of Wyoming and its citizens, including many of its cattle producers, are literally being held hostage by the USDA and many State Veterinarians. Instead of building appropriate and scientifically sound management policies with full public participation, APHIS and the State Veterinarians have conspired to achieve their personal agenda through a process which prevents the public, including those who will be directly affected by the Station Review requirements, from having any meaningful participation in the development, content, or implementation of the Station Review or regulations based on the Station Review requirements.
For all of the foregoing reasons, the Station Review must be retracted and APHIS must reassure Wyoming's of its brucellosis- free status. Any other outcome of this process is inappropriate, unnecessary, and illegal.
Sincerely,
Andrea Lococo
Rocky Mountain Field Office Coordinator
cc: Dr. Joan Arnoldi, Director, USDA/APHIS/VS
Dr. Robert Nervig, USDA/APHIS, Western Regional Director
Mr. Terry Medley, USDA/APHIS, Administrator
Dr. Claude Barton, USDA/APHIS
Dr. Russell Burgess, USDA/APHIS
Mr. Patrick Collins, USDA
Governor Jim Geringer
Mr. John Baughman, Director, Wyoming Game and Fish Dept.
Mr. Ron Micheli, Director, Wyoming Department of Agriculture
Dr. Don Bosman, Wyoming State Veterinarian
Mr. Robert Stanton, Director, National Park Service
Dr. Dan Huff, National Park Service
Mr. Ted Bolling, Department of the Interior
Ms. Debra Hecox, Solicitor, Department of the Interior
Mr. Ray Clark, Council on Environmental Quality