NEWS - USDC Releases Memorandum in Opposition

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


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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
SHOW, INC., et al. VS. CIVIL ACTION NO. 4:12-CV-429-Y

UNITED STATES DEPARTMENT OF AGRICULTURE RESTRAINING ORDER AND ACCELERATING TRIAL ON THE MERITS
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.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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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.