NCBA Defends Cattle Producers in Court Against Government Overreach

Almost every week, the cattle industry faces new regulatory actions from the Biden administration that threaten to slow down business and engulf producers in red tape. To combat this government overreach, NCBA filed litigation against the Environmental Protection Agency (EPA), Army Corps of Engineers, Department of the Interior, and Fish and Wildlife Service (FWS).

Following the finalization of the Biden administration’s Waters of the United States (WOTUS) definition late last year — the third regulatory definition of WOTUS in the last eight years — NCBA once again joined a coalition of national trade associations to halt the rule before it takes effect. In January, NCBA also filed a Notice of Intent to sue the Department of the Interior and FWS over the lesser prairie chicken’s 2022 listing under the Endangered Species Act. NCBA is taking legal action to defend farmers and ranchers from the negative impacts of these regulations.

“While NCBA is able to achieve many of its policy priorities without ever going to court, utilizing the judicial branch is an important tool in our toolbox to ensure that cattle producers are treated fairly under the law,” said NCBA Chief Counsel MaryThomas Hart.

Waters of the United States

The Biden administration and the EPA unveiled an incredibly vague definition of WOTUS in December 2022. The final rule was published to the Federal Register in January 2023, and NCBA then joined a coalition of 13 other national trade associations to block the rule from implementation. To provide regulatory certainty for cattle producers, NCBA advocates for a rule that excludes ephemeral and isolated features from federal jurisdiction and provides exclusions for on-farm features like stock ponds, prior converted cropland, and drainage ditches. While this final rule provides helpful agricultural exclusions, it fails to exclude ephemeral or isolated features from federal permitting requirements.

Prior to filing a lawsuit, NCBA submitted technical comments on this rule, highlighting the importance of maintaining bipartisan agricultural exclusions for agricultural features, isolated features like prairie potholes, vernal pools and playa lakes, and ephemeral features that only flow during periods of rainfall but remain dry throughout the rest of the year. Regulating these features at the federal level disrupts normal agricultural operations and interferes with cattle producers’ abilities to make improvements to their land. Under this rule, cattle producers across the nation could face scrutiny for conducting normal activities.

“My cattle operation in southwest Virginia has a creek that only carries water after large storms. Under this WOTUS rule, our operation could be subject to complex federal regulation,” said NCBA Policy Chair Gene Copenhaver, a cattle producer from Virginia. “I’m proud of NCBA’s work fighting back against this rule, and I hope the uncertainty created by WOTUS will soon be a thing of the past.”

While NCBA is suing to halt the final WOTUS rule, the association also filed an amicus brief before the U.S. Supreme Court in the case Sackett v. EPA. The Sackett case challenges the federal government’s authority of isolated wetlands and those features that are adjacent to traditional navigable waters. On average, the federal government has changed the definition of WOTUS every 3.8 years since the Clean Water Act passed in 1972, leading to decades of confusion for cattle producers. NCBA is hopeful that some clarity will be granted by reaching a decision in the Sackett case.

“The Sackett case is an opportunity to finally solidify the EPA’s proper jurisdiction,” Hart said. “We are also deeply concerned that the EPA finalized a WOTUS definition while the Supreme Court was hearing the Sackett case. NCBA hopes the final Supreme Court ruling provides lasting certainty to cattle producers.” Lesser Prairie Chicken

NCBA also recently filed a Notice of Intent to sue the Biden administration over the Endangered Species Act listing of the lesser prairie chicken. The listing was previously set to take effect at the end of January, but thanks to pressure from NCBA and our allies in Congress, the rule was delayed by 60 days. The listing will now take effect on March 27, 2023. Five states will be impacted, divided into two Distinct Population Segments (DPS): the Northern DPS and Southern DPS. The Northern DPS, made up of Kansas, Oklahoma and Colorado, is listed as “threatened” and the Southern DPS, Texas and New Mexico, is listed as “endangered.”

The Notice of Intent followed a letter sent to the FWS requesting a delay of the effective date and highlighting concerns with the 4(d) rule for the Northern DPS. Under the 4(d) rule, third parties selected by the FWS will act as grazing authorities with the power to review and approve grazing management plans within the Northern DPS. This discretion on the part of third-party groups won’t stop private landowners from being able to graze their land, but it will determine the degree to which they are legally protected in the case of incidental take.

If cattle producers on these lands do not have a third-party approved grazing management plan, they will be subject to harsh civil and criminal penalties for incidental take of the bird. With a lack of guidance from the agency about who these third parties will be, this rule opens the door for environmental activist groups to try to exercise oversight of cattle grazing on lands inside the species’ range.

“This 4(d) rule would allow environmental activist groups to have a completely inappropriate level of power over cattle producers and their compliance with federal regulations. This third-party verification system puts political priorities over sound science and empowers distant bureaucrats over land managers and producers with decades of experience,” said NCBA Director of Government Affairs Sigrid Johannes. “The people who know best how to graze this land and know best how to conserve this species are producers — period.”

Cattle grazing provides immense environmental benefit by conserving the very habitat the lesser prairie chicken needs to thrive. Science has proven that these birds favor diverse rangeland with a variety of plant species — like those cultivated by livestock grazing — rather than uniform grasslands or cropland. Cattle ranchers’ efforts to maintain this land are critical to the survival of the species.

“NCBA is in Washington every day to advocate for cattle producers in Congress and federal agencies, but sometimes advocacy is not enough,” Hart said. “When cattle producers’ livelihoods are threatened, NCBA is prepared to take federal regulators to court.”

Not every agriculture group has the ability to maximize its impact in all three branches of government, but NCBA does. NCBA is your voice from Capitol Hill to the courtroom, and we are pursuing these lawsuits to ensure that cattle producers are treated fairly under the law. For more information on these lawsuits visit www.ncba.org