After this year’s Celebration, all pretenses of partnership between the performance horse crowd and the USDA have been dismissed. The naked hostility of trainers, owners, and exhibitors to USDA inspectors combined with contempt for the USDA’s regulatory authority for full enforcement of the Horse Protection Act is now on full display for all to see.
More than a thousand people showed up at the Calsonic Arena to hear Congressman Scott DesJarlais promise that he would attempt to have a congressional hearing into what the crowd viewed as inconsistent enforcement during this show season and government overreach, specifically during the Celebration. He has already delivered on a part of that promise by questioning the USDA’s Kevin Shea on the subject during a Congressional oversight of the USDA meeting held on September 16th.
The USDA’s Dr. Gipson was mocked on an industry message board after the Celebration concluded, reminding the embattled veterinarian that the USDA had had its lunch handed to it in the recent appeal to the 5th Circuit over mandatory penalties. The author of the post actually speculated that perhaps this graduate of a medical school program either was unable to read or was too lazy to read the decision.
And behind all the noise, quietly behind the scenes, a motion has been filed, with the industry taking advantage of a little known option called the Equal Access to Justice Law. What does the Equal Access to Justice law do and why should this be a federal law that the industry supports wholeheartedly?
Equal Access allows district courts to award reasonable attorney fees plus expenses to a prevailing party in a lawsuit that has been filed against any government agency. Enter the SHOW HIO, Contender Farms, and plaintiff and attorney Mike McGartland.
First, some capsulized background.
When the HPA was passed, there was no provision for self-inspection through entities called Horse Industry Organizations (HIOs). They were foisted upon the USDA through the efforts of industry influentials aided by friendly politicians whose campaigns had been supported. The USDA, given both full authority and responsibility under the law, not to regulate soring practices but to end the practice of soring horses, found itself in an arranged marriage where the partners had different ideas about what would define success in the years ahead.
From the beginning, the USDA was never given sufficient resources to enforce the HPA. The industry, however, recognizing the danger, met the new federal challenge head-on. They established relationships with powerful congressmen and senators in order to ameliorate the potential effects of the HPA, successfully challenged a legal ruling that would have removed the package from performance horses, and succeeded in putting in place the private inspection scheme known as an HIO. These same industry friendly politicians insisted that these private plans be given standing in terms of inspecting the many shows that USDA inspectors would never be able to attend because of its limited budget for enforcement.
Thus, an uneasy alliance between the USDA and the HIOs was born. When contentiousness between the official regulator and the unwillingly regulated boiled over, as it often did, these same politicians could be counted upon to threaten the entire budget of the USDA unless they got into line and left the industry to regulate, essentially, itself. No less a personage than Steve Smith, the current president of TWHBEA, proudly announced during an annual membership meeting back in the 90s, that the industry was now in the position of self-regulation with the USDA in more of an advisory role.
As show opportunities for the walking horse became more diverse, and competition for shows became an issue, new HIOs continued to form and were approved by the USDA. Each HIO had its own rule-book, its own penalty structure, its own inspectors, and each had its own view of the legitimacy of the Horse Protection Act.
Some of the HIOs were supportive of the USDA’s position for strict enforcement while others were clearly hostile to the idea of government interference in their self-regulated horse show world.
Over the years, public opinion became more engaged on this issue. Advocates began to ask questions about why the suspensions given by some HIOs always seemed to be served during the off- season, essentially having no effect; why each year violators started the season fresh and clean with no regard for prior history; why suspension lists were not easily accessible to the public; why penalties varied widely from HIO to HIO; why horses were still being sored and scarred in direct contravention of the federal law.
Public listening and comment sessions held by the USDA in a variety of American cities proved conclusively that there was more than one voice speaking for the walking horse and the USDA tried to balance the equation.
The result of hours of listening was years of unsuccessful and contested proposals known as Operating Plans and Strategic Plans. Some were signed by HIOs, ignored by others, renegotiated by industry lawyers, attacked by staffers for politicians, even as the soring continued and the industry moved along. For every step forward, it seemed, that there was always at least a step or two backwards, from the point of view of animal welfare advocates.
Finally, the USDA, after years of frustration determined that the way forward was to establish a system of uniform and mandatory penalties, under its rules and regulations authority, that were to be awarded by each USDA certified HIO. The penalties would be cumulative and meaningful and that is when, as the saying goes, the defecation hit the fan.
This brings us back to SHOW, Contender Farms, and Mike McGartland, a lawyer from Texas who owned at the time of his lawsuit a World Grand Champion performance horse. The USDA was soon to be sued over the establishment of mandatory penalties.
Judge Terry Means in a US District Court entered a decision that supported the concept of mandatory penalties in the narrowest possible language in favor of the USDA in 2013 and mandatory penalties remained in place. But the satisfaction from outside the industry over this first victory was short-lived.
Although SHOW dropped off the appeal filed by McGartland in the 5th Circuit Court of Appeals, the HIO and the audience that it represented watched anxiously to see what the outcome would be. When the ruling came, there was joy in performance horse ranks. The 5th Circuit ruled in a unanimous decision that a requirement that HIOs enforce USDA mandated penalties was not a valid application of the USDA’s regulatory authority.
McGartland’s theory was that there was no authority under which the USDA could create for a private inspection program a liability and enforcement scheme that was different from the one that Congress first established under the HPA. In essence, this means that although the USDA certifies HIOs, they have no say in how they operate or what penalties they may or may not choose to give.
The system foisted on the USDA by the Congress, which had existed in an uneasy relationship for decades, finally come back to bite the federal agency in the back. It was a knock- out blow delivered through McGartland, whose Contender Farm appears in hindsight to have been aptly named.
With the district court’s decision reversed and the judgment vacated, in April of 2015, Judge Means granted a summary judgment for SHOW, Contender Farms, and McGartland. Mandatory penalties were dead in the water, but more was on the way.
Using the provisions of the Equal Access to Justice Law, quietly and with little fanfare, SHOW and McGartland filed a motion seeking recovery of fees and expenses for their case against the USDA. At a minimum they have requested that they recover $389,749.00 and at the maximum $489,500.00 plus expenses of $980. They have requested that the court order the government to pay the maximum amount. At this point the motion is working its way through the federal legal system.
This should be a new reason for advocates to work on passing the PAST Act. Under the PAST Act the dysfunctional and combative HIO system would be eliminated. The USDA would be required to enforce the law, as mandated by the HPA, no more and no less, and use federal cases to prosecute those who violate the law whileupping potential penalties. This important aspect of PAST is in addition to the provisions that get more attention, removing packages and heavy shoes whose only purpose is to exaggerate gaits and removal of the chain action devices now in use, devices contributory to the sore horse.
SHOW and Mr. McGartland likely will recover their legal fees and expenses, thanks to the 5th Circuit Court and the Equal Access law. The taxpayers of America will foot the bill.
It can only be hoped that the USDA learned the following things from this costly exercise.
· Self-regulation by the industry has not resulted in an end to soring.
· The people who are involved in the operation of the majority of the HIOs are not partners with the USDA but are in fact adversaries.
· They found a legal basis that allowed them, not only to thwart attempts to make penalties for soring horses meaningful, but also to use a legal way to make the government pay for their attempt to make them do so through mandatory penalties which failed to be upheld.
It’s time to pass the PAST Act in order to achieve full implementation of the Horse Protection Act. Twenty-one new representatives and another senator have signed on as co-sponsors on September 9th, just after the completion of the Celebration.
The horses deserve equal access to justice, too. PAST is the amendment to the existing law that will give it to them. The energy of advocates should be channeled in that direction.