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Nebraska Beef Producers Committee v. Nebraska Brand Committee

United States District Court, D. Nebraska

February 5, 2018

NEBRASKA BEEF PRODUCERS COMMITTEE, Plaintiff,
v.
NEBRASKA BRAND COMMITTEE and WILLIAM BUNCE, in his official capacity as Executive Director of the Nebraska Brand Committee, Defendants.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         At 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 Producers' complaint.

         The 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.

         I. BACKGROUND

         The Brand Act, originally enacted in 1941, [1] aims to detect and prevent livestock theft by establishing a regime for recording livestock brands and inspecting livestock-particularly cattle-to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.

         The 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 § 54-199.

         Brands 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.

         The 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 requirements.

         It is 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).

         It is 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.

         It is 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, 114(2).

         Notably, 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, [2] 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).

         Cattle 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.

         In 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.

         And a 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.)

         The 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.

         The 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. Filing 16.

         II. DISCUSSION

         The 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 Fed.R.Civ.P. 12(b)(1).

         1. Subject Matter Jurisdiction

         The 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.[3]

         (a) Standard of Review

         A 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 Cir. 2010).

         A court 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).

         (b) Sovereign Immunity

         The 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 (1908).

         In 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 ...


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