United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
issue in this case is the constitutionality of the Nebraska
Livestock Brand Act, Neb. Rev. Stat. §§ 54-170 to
54-1, 127 (Reissue 2010, Cum. Supp. 2016, & Supp. 2017).
The Nebraska Beef Producers Committee (Beef Producers) sued
the Nebraska Brand Committee and its executive director,
William Bunce (collectively, the Brand Committee), alleging
that the Brand Act violates the dormant Commerce Clause and
Equal Protection Clause of the Constitution. The Court finds
no merit to those allegations, and will dismiss the Beef
Court does not doubt that the Beef Producers sincerely
believe the Brand Act has outlived its usefulness. But the
people who can help them with that problem, if indeed it is a
problem, can be found about 4 blocks south down Centennial
Mall. Whatever flaws there might be with the Brand Act, it
does not violate federal law.
Brand Act, originally enacted in 1941,  aims to detect
and prevent livestock theft by establishing a regime for
recording livestock brands and inspecting
livestock-particularly cattle-to ensure proper ownership.
See 1941 Neb. Laws, ch. 111, § 9, p. 437. At
the time, brand inspection had been carried on for 20 years
by the Nebraska Stock Growers Association, and the
Legislature enacted the Brand Act to create the Brand
Committee and invest it with authority to enforce the brand
laws. Statement, L.B. 275, Agriculture Committee, 55th Leg.
(Mar. 5, 1941). The enactment was endorsed by the Nebraska
Stock Growers Association, Omaha Live Stock Exchange, and the
Sales Ring Association. Id.
Brand Act created the Brand Committee, whose voting members
are appointed by the Governor-at least three voting members
must be active cattlepersons, and one must be an active
cattle feeder. § 51-191. Among other things, the Brand
Committee is responsible for recording brands and publishing
a book of all recorded brands. § 54-193; see
are means of identifying livestock. See §
54-199. A "visual brand" is "a mark consisting
of symbols, characters, numerals, or a combination of such
intended as a visual means of identification, " marked
on the hide of a live animal by applying either a hot iron or
intense cold. See § 54-198 & 54-199(2);
see also § 54-181. The Brand Committee may also
provide for recording and use of electronic brands or other
nonvisual methods of livestock identification, if they
function as well as or better than visual brands. §
54-199(4). It is generally unlawful to use a brand in
Nebraska that has not been recorded with the Brand Committee.
§ 54-198; but see §§ 54-186.01 &
54-1, 128 (permitting one-time use of out-of-state brand on
cattle to be exported). And a recorded brand is prima
facie evidence of livestock ownership, admissible in
court if the brand is properly recorded. § 54-1, 107.
purpose of the Brand Committee is "to protect Nebraska
brand and livestock owners from the theft of livestock
through established brand recording, brand inspection, and
livestock theft investigation." § 51-191. The Brand
Act authorizes a fee of not more than $1.10 per head to be
charged for cattle inspection. § 54-1, 108. And the
Brand Act creates a "brand inspection area" made up
of, essentially, the western two-thirds of Nebraska.
§§ 54-175 & 54-1, 109; see filing 1-1.
Livestock in the brand inspection area, or moving in or out
of the brand inspection area, are subject to special
unlawful to move cattle out of the brand inspection area
unless a brand inspection is performed. § 54-1-110(1);
see 54-179; but see § 54-1, 110(3)
(authorizing issuance of permit to landowners whose property
straddles the border of the brand inspection area). With
limited exceptions, it is unlawful to sell or trade cattle
within the brand inspection area unless the cattle have been
inspected for brands. § 54-1, 111. Anyone in the brand
inspection area who slaughters cattle must keep a record of
cattle purchased and slaughtered, and anyone who purchases
cattle hides must keep a record of the hides. § 54-1,
112. Inside the brand inspection area, it is unlawful to sell
or trade a beef or veal carcass, including the hide, without
a certificate of inspection from a brand inspector. §
54-1, 113(1)(a). And outside the brand inspection area, it is
unlawful for anyone but a bonded butcher to sell a beef or
veal carcass without showing the buyer the intact hide and
the brand. § 54, 1113(1)(b).
also unlawful to transport livestock or carcasses by motor
vehicle on a public road in the brand inspection area without
a livestock transportation permit from the owner of the
livestock, a certificate of inspection, or a shipping
certificate from a registered feedlot. § 54-1, 115. No.
cattle may be sold or otherwise disposed of without a
certificate of inspection. § 54-1, 116. And no livestock
in, entering into, or passing through the brand inspection
area are allowed to intermingle with other livestock after
they have been inspected. § 54-1, 117.
also generally unlawful for a butcher, meatpacker or vendor
slaughtering cattle in the brand inspection area to kill or
dispose of cattle until a brand inspection is performed and a
certificate of inspection is issued, § 54-1, 114(1). But
if cattle are purchased by a butcher, meatpacker, or vendor
at a regularly brand-inspected sales barn and are destined
for direct slaughter, the brand inspector at the sales barn
may issue a certificate of inspection permitting the cattle
to be slaughtered within 96 hours of receipt. § 54-1,
however, a cattle feeding operation in the brand inspection
area may apply to the Brand Committee to become a
"registered feedlot." § 54-1, 120(1). The
Brand Act authorizes the Brand Committee to charge a
registration fee for each 1, 000 head the feedlot maintains,
with the fee to be proportional to the per-head brand
inspection fee. § 54-1, 120(1). Registered feedlots may
be inspected by the Brand Committee at any reasonable time,
and must produce cattle purchase records or certificates of
inspection for all the cattle at the feedlot upon demand.
§ 54-1, 120(3).
in a registered feedlot are not subject to brand inspection
when they are moved from the brand inspection area. §
54-1, 110(2); see §§ 54-188 & 54-1,
120. Brand inspection is not required for cattle bought in
the brand inspection area that are shipped from a registered
feedlot for direct slaughter, or for sale to a terminal
market. § 54-1, 111(2)(a). And cattle shipped from a
registered feedlot are not subject to brand inspection at
origin or destination if they are destined for direct
slaughter or sale at a terminal market, but the shipper must
have a shipping certificate from the registered feedlot.
§ 54-1, 121. Cattle shipped from a registered feedlot
for any purpose other than direct slaughter or sale at a
terminal market are, however, subject to brand inspection.
§ 54-1, 121.
addition, cattle coming from another state that has a brand
inspection agency, and that have a certificate of inspection
or brand clearance from that agency, may be moved directly
from their point of origin to a registered feedlot. §
54-1, 122. But any cattle that do not have a certificate of
inspection or brand clearance, or that do not have
satisfactory evidence of ownership from an area not having
brand inspection, must be inspected by the Brand Committee
after arriving at the registered feedlot. § 54-1, 122.
livestock market or meatpacking plant which maintains brand
inspection supervised by the Brand Committee may be
designated by the Brand Committee as an "open market,
" meaning that when cattle in the brand inspection area
are consigned for sale at the open market, brand inspection
is not required at the point of origin, but is required at
the point of destination unless the point of origin is a
registered feedlot. §§ 54, 1, 119(1) & (2). (In
other words, cattle from a registered feedlot consigned for
sale at an open market need not undergo a brand inspection.)
upshot of the statutory scheme is that, generally, cattle
moving in or out of the brand inspection area or being sold,
traded, or slaughtered in the brand inspection area are
subject to inspection. But cattle shipped to or from a
registered feedlot are (depending somewhat on the origin or
destination of the cattle) exempt from many of those
requirements. And either having cattle inspected, or
registering a feedlot to reduce inspection requirements,
means paying a fee to the Brand Committee.
Beef Producers allege that they are "a non-profit,
mutual benefit corporation" whose "members include
cattle producers operating registered feedlots within
Nebraska." Filing 1 at 1-2. As noted above, the Beef
Producers claim that the Brand Act runs afoul of both the
dormant Commerce Clause and the Equal Protection Clause, to
the detriment of their members, and they move to
preliminarily and permanently enjoin the Brand Act's
enforcement on those grounds. Filing 1; filing 6. The Brand
Committee moves to dismiss the Beef Producers' claims.
Brand Committee moves to dismiss the Beef Producers'
claims on their merits for failure to state a claim, pursuant
to Fed.R.Civ.P. 12(b)(6). But first, they move to dismiss the
case for lack of subject matter jurisdiction, pursuant to
Subject Matter Jurisdiction
Brand Committee presents several jurisdictional arguments: it
argues that the Beef Producers' claims are barred by
sovereign immunity, and that the Beef Producers lack standing
both because they have not alleged a redressable
injury-in-fact caused by the Brand Committee, and because
they lack associational standing.
Standard of Review
motion pursuant to Rule 12(b)(1) challenges whether the court
has subject matter jurisdiction. The party asserting subject
matter jurisdiction bears the burden of proof. Great
Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th
deciding a motion under Rule 12(b)(1) must distinguish
between a "facial attack"' and a "factual
attack." Branson Label, Inc. v. City of Branson,
Mo., 793 F.3d 910, 914 (8th Cir. 2015). In a facial
attack, the Court merely needs to look and see if the
plaintiff has sufficiently alleged a basis of subject matter
jurisdiction. Id. The Brand Committee's
jurisdictional arguments are focused on purported
deficiencies in the Beef Producers' pleadings, presenting
a facial attack. Accordingly, the Court restricts itself to
the face of the pleadings, and the Beef Producers receive the
same protections as they would defending against a motion
brought under Rule 12(b)(6)-that is, the Court accepts all
factual allegations in the pleadings as true and views them
in the light most favorable to the Beef Producers.
Id.; Hastings v. Wilson, 516 F.3d 1055,
1058 (8th Cir. 2008).
Brand Committee argues that the Beef Producers' suit is
barred by sovereign immunity, because "a state is not a
person within the meaning of [42 U.S.C.] § 1983."
Filing 17 at 20 (citing Will v. Michigan Dep't of
State Police, 491 U.S. 58, 64 (1989)). This is a
surprising argument, though, because the only relief sought
by the Beef Producers is injunctive, and it is
long-established that a federal court may command a state
official to refrain from violating federal law. Virginia
Office for Prot. & Advocacy v. Stewart, 563 U.S.
247, 254 (2011); Ex parte Young, 209 U.S. 123, 159
determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, "a court need
only conduct a straightforward inquiry into whether the
complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective."
Verizon Maryland, Inc. v. Pub. Serv. Comm'n of
Maryland, 535 U.S. 635, 645 (2002) (cleaned up). Here,
no liability of the state or the executive director is at
issue, and the complaint does not seek money damages from the
state based on a past breach of legal duty on the part of the
defendants. See Id. at 646. Instead, the Beef
Producers seek declaratory and ...