"Today, Tennessee Walking Horses are known throughout the industry
as the breed that shows abused and tortured horses."

~ Jim Heird, Ph.D., Do Right By The Horse, February 2010

"If you have men who will exclude any of God's creatures from the shelter of compassion and pity,
you will have men who will deal likewise with their fellow men."

~ St. Francis of Assisi

Monday, July 9, 2012

NEWS - USDC Releases Memorandum in Opposition

First of all, I posted this information on the FTTWH Facebook page the other day:


SHOW, INC., et al. VS. CIVIL ACTION NO. 4:12-CV-429-Y

Before the Court is Plaintiffs’ motion for a temporary restraining order (“TRO”) (doc. 1). After review, the Court concludes that the motion should be, and is hereby, DENIED. Plaintiffs have not demonstrated a substantial likelihood of success on the merits, and the balance of hardships and public-interest factors counsel against the granting of a TRO. Moreover, in the Court’s view, any risk of irreparable harm facing Plaintiffs is unlikely to befall them prior to the Court’s resolution of the merits of their claims.  That said, in accordance with Federal Rule of Civil Procedure 65(a)(2), the Court concludes that trial on the merits should be, and is hereby, ADVANCED and CONSOLIDATED with the hearing on Plaintiffs’ request for a preliminary injunction, which shall take place on Monday, July 16, 2012, at 10:00 a.m. A memorandum opinion on the Court’s denial of Plaintiffs’ TRO motion, along with a full scheduling order concerning the July 16 trial, will be issued early next week.
SIGNED July 6, 2012.


Basically, what this meant was that SHOW and their cronies, Contender Farms, LLP and Mike McGartland, included in their lawsuit to keep the mandated penalties from becoming part of the HPA on July 9, 2012.  They were denied.  They will have the trial on July 16, 2012--clearly they want to get the ruling done before the Celebration.  Or should I say Soreabration?  I do agree with getting this into court faster--let's get this done and over with.

Now, the USDC has released their Memorandum in Opposition to the temporary restraining order and the preliminary injunction lawsuit put forth by SHOW, et. al.  Click here for the document as a pdf.  It is 31 pages as a pdf; the document standing alone is 24 pages.  I don't want to reproduce the findings of the entire document here, so I highly, highly recommend everyone read it.  But it's important to note that this ruling basically says what many have been saying all along, as follows.

The document states that basically, unless someone is actively soring horses, then they won't be affected by the mandated penalties.  It also says that participating in showing is voluntary, so if they believe they are in danger then they don't have to show.  It's not a requirement to ride horses in a show, even if you do it for a living.  Anyone can go to a different discipline, breed, or even find another job out of the horse show business altogether.  It's just like any regular job in America.  Let's say you go to work for a company where there is a rule you don't like, such as you can't wear flip flops in the office.  No one says you have to continue to work there and suffer not wearing flip flops.  Just go find a different job.

It also points out that enforcement of the HPA using the HIO/DQP system IS constitutional.  I can't say it much better than the document itself says it.

Plaintiffs first argue that APHIS’s reliance on HIOs to help enforce the HPA violates two provisions of the Constitution: Article I, which gives legislative powers to Congress, and Article III, which grants adjudicatory powers to the judiciary. Plaintiffs seem to suggest that any enforcement proceedings undertaken pursuant to the Act must take place in an Article III court, a claim that is clearly contrary to well-established caselaw..."Congress is not barred from acting pursuant to its powers under Article I to vest decisionmaking authority in tribunals that lack the attributes of Article III courts."..."Congress has often created new statutory obligations, provided for civil penalties for their violation, and committed exclusively to an administrative agency the function of deciding whether a violation has in fact occurred". There is thus no Article III violation presented by the Final Rule, which Plaintiffs themselves later admit.

Nor does the Final Rule violate Article I. No constitutional bar exists precluding 
an agency from delegating power to a private entity.  
This is true even where the agency delegates to a private entity adjudicatory power [for example, an HIO]...“Congress has the power, under Article I, to authorize an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program without providing an Article III adjudication.”  (Pages 8-9)

This document also clearly points out the irony of their lawsuit in that the industry admits there are problems but yet claims that the Final Rule (mandated penalties) are "arbitrary and capricious." For example, they cite HIOs not turning in documents on time and violators serving their suspension off season as problems.  The response to that particular whine about the Final Rule: "Plaintiffs’ dissatisfaction with the sixty-day requirement does not render it arbitrary and capricious, and the various statistics they cite regarding APHIS’s own enforcement proceedings...are irrelevant because those proceedings are governed by 15 U.S.C. 1825(c), not the Final Rule" (pages 17-18).

Quite possibly the most important part of the document is this: it continually points out that Congress gave the APHIS the ability to make changes to the HPA and enforce more regulations as needed when the HPA was passed.  Specifically, "Even if Congress did not expressly authorize the sub-delegation of enforcement power in the HPA, the agency’s interpretation of the HPA in this regard was nevertheless reasonable and is entitled to deference" (page 11).  And here's an even better quote:

In this case, Congress has determined that the practice of soring constitutes the cruel and inhumane treatment of horses, and has entrusted APHIS with the responsibility to promulgate rules to eliminate the practice from the horse industry. The Court should be loath to disregard Congress’s judgment, even if Plaintiffs had provided any comparable harm at the other end of the balance.  (page 24)

Please, take the time to read this document in its entirety to learn more.  Quite frankly, SHOW, Contender Farms and McGartland are making themselves look like morons.  All they want is to keep sore horses in the ring, and this court saw right through their lame excuses and called them on it.


Anonymous said...

I saw something interesting in The Scoop: an advertisement for a NO HIO horse show, complete with lots of padded classes. The show is going to be held at Clearview Farm in Shelbyville, TN. They do say that nobody on federal or HPA violation can participate--only watch from in the stands. Is this a way around all the new rules--hope not!

For the Tennessee Walking Horse said...

Yes, I do know about that show. The person organizing it is trying a "new" system where they don't use DQPs but use "stewards" to call out horses out of the warm-up ring if they think they're sored. Quite frankly, this is a step backwards and a very easy way to allow the sore horses through and pick on those who they don't like. At least with the DQP system every single horse is checked, so technically it shouldn't be biased (even though we know it is).

It is okay to put on a show that is not affiliated with an HIO. However, if the USDA shows up and finds sore horses at the show, the show management will be fined $10,000 and the show can be shut down. The management takes on the liability of sore horses being there rather than the HIO being the go between.

By law, those currently on federal suspension can only be spectators at a show but do nothing else--no riding, entering horses in the show, training, or even giving advice on the sidelines. But HPA violators are allowed to show as long as they've served their sentence. If he didn't allow HPA violators at the show, that would wipe out most of the big trainers out there.

So to answer your question, in a way, yes, this is a way around all the new rules. It's pretty ridiculous, IMHO. It's sad that this industry can't just buck up say we made a mistake, we're sorry, TRULY get rid of the sore horse trainers, stacks and chains, and go back to what this horse was originally meant to be.

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