Could a 2010 Idaho initiative bar Idaho from participating in the federal National Animal Identification System?

Plain-English summary

The proposed initiative would have added a new chapter to Title 25 of the Idaho Code prohibiting Idaho from participating in the federal National Animal Identification System (NAIS). The NAIS, run by the USDA's Animal and Plant Health Inspection Service (APHIS), was a livestock identification framework that small-farm and homestead groups opposed as burdensome and intrusive.

Attorney General Lawrence Wasden's certificate identified four issues:

1. Drafting copy-paste error. The initiative referred to "the Missouri department of agriculture" at three points (sections 25-4001(2), 25-4003(2), and 25-4004). The Idaho legislature and Idaho voters cannot impose duties on Missouri agencies. The "Missouri" references were apparently copied from a Missouri version of the same model initiative without being changed for Idaho.
2. Contract Clause concern. A provision purporting to terminate "all cooperative agreements between the federal government and this state ... related to the establishment of animal tracking, tagging, registration, or information databases" before the initiative's effective date would impair contractual obligations in violation of U.S. Const. art. I, § 10. U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977), holds that the Contract Clause limits a state's power to modify its own contracts.
3. Mootness from federal change. On February 5, 2010 (eleven days before the certificate), USDA APHIS announced it was refocusing NAIS on interstate-commerce disease traceability. Producers who raised animals only for local markets, family use, or feeding their neighbors were no longer in scope. The AG suggested the initiative authors revise the proposal in light of USDA's narrower focus.
4. Placement issue. The proposal was drafted as a new chapter, but the AG suggested it might fit more appropriately as an amendment to Idaho Code § 25-2078 (livestock disease identification rules).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The NAIS was a USDA program developed in the mid-2000s to track livestock for disease response. It drew strong opposition from small-farm and homesteader communities who viewed it as expensive and a privacy intrusion. By 2010, USDA was retreating from the broader voluntary-mandatory NAIS framework toward a narrower interstate-commerce focus, which is what the AG references.

The extraterritoriality issue (Healy v. Beer Institute) is a recurring concern with state ballot initiatives that purport to regulate beyond state borders. The Contract Clause analysis (U.S. Trust Co. of New York v. New Jersey) is the standard framework for challenges to state laws that retroactively void existing contracts.

Common questions

Q: Why would an Idaho initiative reference Missouri?
A: The "Missouri" references in three sections strongly suggest the petition was a copy-paste from a Missouri version of the same model initiative. The drafters apparently failed to change all instances of the state name. The AG noted this would render those sections unenforceable as to Idaho even if the initiative were enacted.

Q: What was the Contract Clause concern?
A: The proposal would have voided existing cooperative agreements between Idaho and the federal government related to NAIS. Under U.S. Trust Co., a state cannot retroactively impair its own contracts where a party has a vested interest in performance. The provision would have been unenforceable as to pre-existing agreements.

Q: Did this initiative reach the ballot?
A: This is the certificate of review, the first procedural step. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.

Q: Is the National Animal Identification System still in effect?
A: NAIS as such was retired and replaced by USDA's narrower Animal Disease Traceability framework in 2013, codified at 9 C.F.R. Part 86. The current rule applies primarily to livestock moving in interstate commerce. Idaho-specific rules and the federal program have evolved since 2010, and current law should be checked against this opinion's statements.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (certificate of review)
- Idaho Code § 25-2078 (livestock disease identification)
- U.S. Const. art. I, § 10 (Contract Clause)

Cases:
- Healy v. Beer Institute, Inc., 491 U.S. 324 (1989), states cannot regulate commerce wholly outside their borders
- U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977), Contract Clause limits state power to modify own contracts

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021610a.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 16, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re:

Certificate of Review
Proposed Initiative Related to Animal Identification

Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only". The petitioners are free to "accept or reject them in whole or in part". The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative ("Initiative") seeks to add a new chapter to Title 25, which is the Idaho Code title pertaining to animals. The Initiative proposes to add a chapter that would prohibit the state of Idaho from participating in the national Animal Identification system.

The National Animal Identification System ("NAIS") has historically been a voluntary endeavor, although there have been efforts to make the system mandatory. On February 5, 2010, the United States Department of Agriculture ("USDA") Animal and Plant Health Inspection Service ("APHIS") announced that it was refocusing NAIS efforts on disease traceability, and that the new focus would be only on animals that move in interstate commerce. Specifically, the USDA stated that, "Producers who raise animals and move them within a State, Tribal Nation, or to local markets, as well as to feed themselves, their families, and their neighbors are not part of USDA's framework's scope and focus. Animals moving in interstate commerce into normal marketing channels are those that will fall under USDA's new animal disease traceability approach." APHIS Factsheet: Questions and Answers: New Animal Disease Traceability Framework (February 2010) ("Fact Sheet"). Producers who are local only will not be required to participate in the federal program (although states may have their own internal systems used to address specific diseases).

Given that recent change, the Initiative authors may wish to revise the Initiative to ensure that the Initiative is consistent with USDA's new focus.

A.

The Initiative Contains an Incorrect State Name at Material Points in the Initiative

It is a basic tenet of constitutional law that a state may enforce laws only within its own borders. See, e.g., Healy v. Beer Institute, Inc., 491 U.S. 324, 336, 109 S. Ct. 2491, 2499, 105 L.Ed.2d 275 (1989) (stating that, "[A] statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State's authority and is invalid regardless of whether the statute's extraterritorial reach was intended by the legislature.") However, at three different points, the Initiative references Missouri, rather than Idaho.

First, proposed subsection 25-4001(2) provides that, "As used in this chapter, the following terms mean: ... 'Department,' the Missouri department of agriculture." That presumed error renders the entirety of proposed section 25-4003 ineffective, because that section sets forth the duties of "the department of agriculture." Neither the Idaho Legislature, nor the Idaho voters through the initiative process, may impose duties upon the Missouri department of agriculture.

Second, to the extent that any portion of section 25-4003 would remain effective, subsection 25-4003(2) attempts to require that the "department of agriculture" "[d]evelop a procedure with the United States Department of Agriculture whereby such citizen's data shall be expunged from the USDA National Premises Information Repository as well as the Missouri animal identification plan system." (Emphasis added.) Similarly, section 25-4004, as proposed, provides that, "Nothing in this section shall be construed as: ... (4) authorizing the department of agriculture to establish any requirement of participation in the Missouri specific source verification." (Emphasis added.) Idaho lacks authority to require that actions be taken by the Missouri department of agriculture, or regarding the Missouri animal identification plan system.

The state of Idaho cannot regulate nor impose duties on the Missouri Department of Agriculture. Therefore, those provisions of the Initiative set forth in the preceding paragraph would be unenforceable.

B.

The Initiative Impairs the Obligation of Contracts

The Initiative seeks to add a new subsection providing that:

All cooperative agreements between the federal government and this state, or between this state and other states, established before the effective date of this section and related to the establishment of animal tracking, tagging, registration, or information databases, premises registration, or information databases, use of electronic identification for animal tagging purposes, and other matters related to the national animal identification system are hereby terminated and null and void as to this state's participation.

Article I, Section 10 of the United States Constitution (the "Contract Clause") provides that "no state shall ... pass any ... law impairing the obligation of contracts...." The "Contract Clause limits the power of the States to modify their own contracts as well as to regulate those between private parties." U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 17, 97 S. Ct. 1505, 1515, 52 L.Ed.2d 92 (1977). The Contract Clause applies to contracts which pre-exist the effective date of a law, or in which a right has become vested. Stated differently, the Initiative could not terminate an agreement nor render its provisions null and void, if a party to the agreement had a vested interest in the performance of the given provision. Moreover, assuming the Initiative is approved, the Initiative could not terminate an agreement that was effective prior to the approval of the Initiative.

C.

The Initiative May Fit More Appropriately in Title 25, Chapter 2, Idaho Code

Title 25, chapter 2, Idaho Code, addresses the "Inspection and Suppression of Diseases Among Livestock." Idaho Code § 25-2078 specifically addresses the "Identification of livestock, poultry or fish - Rules for disease control." While I have not found any specific inconsistencies or conflicts between section 25-2078 and the Initiative, the authors may want to review that section and determine whether the Initiative may fit more appropriately as part of section 25-2078.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alanna Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
ANGELA SCHAER KAUFMANN
Deputy Attorney General