Now that we know the proper meaning of the word stakeholder, we can return to the USDA and see how it uses the word to hoodwink Congress and the American people. Over time, all agencies learned they can get away with choosing their stakeholders, ensuring only friendly comments will result. USDA has corrupted this process from the beginning of NAIS by setting up listening sessions throughout the country and inviting only large commercial producers. It announced the sessions in the Federal Register, which few people other than lawyers read. The announcements gave short notice. Big corporate agriculture companies, of course, had lawyers looking for the announcements and undoubtedly received insider information. The few sessions held were all in large cities. No general notices were put in local agriculture-oriented newspapers or magazines.

And then the USDA artfully manipulated the comment period. With no real publication of the true NAIS plan, who would have paid attention to the 2004 AIN interim rule? Only those already in the know.

If you now look at the NAIS 2005 draft documents and read the word stakeholder with this knowledge, you will recognize the complete travesty brought by USDA. The word stakeholder appears eight times in the original Draft Strategic Plan, which states that “participants [at an October 2004 planning meeting] said one of the strengths of the program is the broad industry, governmental, and stakeholder support for a national animal identification program.” It’s easy to see how Congressional representatives, reporters, and the general public would be convinced that everyone who cared about NAIS had been consulted.

The APA does not require that interested parties be representative of the people affected by a rule. It neither says how widespread meetings must be, nor provides any method by which comments are to be solicited. So USDA can lie about having widespread support and our representatives will clap USDA on the back for including stakeholders. The truth—that the most interested parties (you and me) weren’t consulted—remains hidden.

Done correctly, the APA would at least bring the real concerns about a regulation to the surface. Sadly, over time, agencies learned how to twist the consensus process to the point that many people, especially property rights advocates, shudder at the mere mention of the word. Agencies bring hired consultants with group facilitation skills—actually group manipulation skills—to these meetings, so even if detractors appear they can be controlled and only friendly parties will be recognized. Regular citizens do not have access or the ability to be heard. Meanwhile, USDA can go on saying stakeholders were consulted and Congress is none the wiser.

Use This Knowledge

Consensual rulemaking easily leads to circumventing our representative government and our legislative representatives. The manner in which USDA has pretended to follow the process is a travesty. So when you hear from USDA, or your state department of agriculture, that “all stakeholders were allowed to comment,” ask exactly who those stakeholders were and how they knew to comment on the regulation. Tell them you are a stakeholder and you weren’t consulted.

And while you’re at it, let your legislators know, too. You may be a member of Farm Bureau, the American Quarter Horse Congress, National Cattlemen’s Beef Association, or another pro-NAIS organization, but they never asked your opinion on NAIS. Make sure your legislators know the USDA gives only lip-service to consulting interested parties.

If any agency insists you comply with the law, ask, “What law?” Ask what statute, regulation, or rule they are relying on. Insist they cite the exact statute, regulation, or rule where it is written in the official published laws of your state or the federal government. If it’s a regulation or rule, ask what statute it’s based on. Then you can find out if the law was created properly, or is just a figment of the agency’s imagination—like mandatory property registration for farms (which, not incidentally, is the law in Indiana and Wisconsin). Insisting on a copy of the law lets you determine your rights

Karin Bergener of Ravenna, Ohio, is an attorney and co-founder of Liberty Ark Coalition. This article appeared in the Autumn 2007 issue of Rural Heritage.