Omaha World Herald: Calling Nebraska’s Livestock Brand Act unconstitutional, group of feedlot operators files suit to get rid of it

Calling Nebraska’s Livestock Brand Act unconstitutional, group of feedlot operators files suit to get rid of it

· By Martha Stoddard / World-Herald Bureau

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· June 1, 2017

LINCOLN — A group of unnamed Nebraska feedlot operators has turned to the federal courts to get rid of the state’s Livestock Brand Act.

The Nebraska Beef Producers Committee filed a lawsuit Tuesday in U.S. District Court claiming that the brand law is unconstitutional.

The group also is seeking a preliminary injunction, which, if granted, would immediately block enforcement of the law.

According to the suit, the brand act puts an excessive burden on commerce and violates the equal protection clause of the U.S. Constitution.

“While the brand act may have provided a local benefit in the past, changes in technology and management of cattle production operations have reduced the local benefits … while continuing to impose a costly burden on interstate commerce,” the suit said.

The suit names the Nebraska Brand Committee and its director, William Bunce, as defendants.

Bunce said he had not been officially served with the lawsuit and could not comment, other than to say he is looking forward to disposition and resolution of the matter.

Al Davis of Hyannis, an officer with the Independent Cattlemen of Nebraska and former state senator, defended Nebraska’s 76-year-old brand program.

He said those filing the suit represent a minority of cattle producers in the state, while the majority stand solidly behind the state law.

“It’s a program that’s highly respected in western Nebraska,” he said.

By law, state brand inspectors must check all cattle in the western two-thirds of Nebraska before they are transported or sold. The brand committee also does theft investigations.

John Hansen, president of the Nebraska Farmers Union, said the brand program plays a critical role in protecting cattle producers and preventing cattle theft and loss.

“What the brand committee does is keeps everybody in the system more accountable and honest,” he said.

Pete McClymont, executive vice president of the Nebraska Cattlemen, declined to comment on the suit, noting that members of his group hold strong positions on both sides of the brand issue.

The lawsuit identifies the Nebraska Beef Producers Committee as a nonprofit, mutual benefit organization whose members operate feedlots.

Documents filed with the Secretary of State list Jon Bruning, the former state attorney general, as the group’s registered agent.

Katherine Spohn, an attorney in Bruning’s private law firm, is representing the feedlot operators group in the federal lawsuit.

In the suit, the group argues that the brand program started when cattle were raised in large open areas with little human supervision, where they were vulnerable to theft or straying. Branding was the only effective means to determine ownership.

Now, the group claims, the brand program is “ineffectual and obsolete.”

The suit said cattle are identified through electronic devices and ear tags, as well as brands. Cattle in feedlots are more closely supervised and are typically kept inside a double fence.

The feedlot operators group alleged that the time needed for inspections and the brand fees create an undue burden on buying and selling cattle.

The group also claims that the law violates the equal protection clause because it only applies to producers in the brand inspection area, not the eastern third of Nebraska.

Hansen and Davis said the lawsuit appears to be part of a battle between some large feedlot operators in the state and other cattle producers.

Those feedlot operators have tried through legislation and other means to get their fees reduced, they said.

Nebraska is one of the nation’s top cattle producing states. It ranks number one in commercial cattle production and cattle on feed and number two in all cattle and calves.

martha.stoddard, 402-473-9583