The Game of What if and What’s Next?

My Daddy told me if you whip a bully good the first time, you don’t have to do it again. Time we made the first swing.
— Comment made by a performance horse supporter, May 2016, whose attitude seems to reflect the mood of the business.

The Issue: The USDA has proposed a rule to the OMB   that would eliminate pads and chains from show horses and would return complete enforcement of the HPA to the USDA, as was envisioned when the federal law was first signed into law in1970.


 The Status: No surprise! The  industry has rallied, just as it did when Judge Gasch stopped a horse show in its tracks many years ago and pads and chains were placed  in jeopardy. 


Some History: The person who rallied the troops to fight the federal government in the 80s was Reese Smith of Tennessee, the late father of current TWHBEA president Stephen B. Smith.  Mr. Reese was responsible for raising the first sizeable war chest for  industry sponsored litigation against the USDA.  He appealed  directly to industry supporters under the auspices  of an organization he founded called the Friends of the Show Horse.


For years, a part of every inspection fee on every horse shown  in  walking horse venues using the NHSC, the precursor to SHOW, as an HIO, was back-channeled to the Friends.  Most  exhibitors were unaware of the practice.


The Friends later morphed into the Show Horse Support Fund after questions about its funding and its spending began to be asked at the TWHBEA level by members unhappy with the registry both  funding and supporting efforts they considered not to  be in the best interests of the breed.


Reese was very  successful in his quest.  He raised hundreds of thousands of dollars earmarked to fight the government, back when hundreds of thousands of dollars was real money. The Friends  later went on to help pay for HPA cases filed against individual exhibitors  that had been carefully selected by the industry because they believed that a win in these cases would be precedent setting for later cases that might be filed.  They won some and they lost some.


The late Charles Terry, an attorney of renown who had fought and wonnumbers of major cases in his private practice , was also a  supporter of the industry and  an owner of performance horses.  He remained active in the fight against what he saw as federal overreach in the enforcement of the Horse Protection Act almost until the day he died.  He  used his considerable resources and the resources of his firm to see to it that the use ofpads and chains remained intact.  


  As a result of the Auburn Study, the 10-ounce chain then legal in shows was  reduced in size to the 6-ounce chain, now standard issue in show rings. Like Chicken Little, the industry claimed that the loss of the 10 ounce chain would ruin the show horse but has gotten along with the 6 ouncer ever since,   even as much heavier chains often used in combinations are still routinely used in training barns.  


Like Mr. Smith, Mr. Terry was a personal friend of David L. Howard, the publisher and owner of the Walking Horse Report and former chairman of the Celebration.  Working together, a group of  confidants thus   managed to control the destiny of the walking horse business for many years, albeit quietly and behind the scenes. Only in recent years have the people and the connections in the   walking horse business become more open to the general public’s scrutiny.


(Power, however,  is never as effective as when it is wielded silently and with a velvet glove.  Contributions to the right palms over many years and investments in the right lawsuits have paid better dividends for the industry  than the  moral outrage  of sound horse advocates over the abuse   called training and shoeing    has ever returned. )


While fighting in the courts, industry leaders also invested in politics and in  politicians they believed would be sympathetic to their positions.  In addition to personal contributions, TWHBEA once had a PAC that was in the top 100 donors for Mitch McConnell’s re-election and contributed to many other industry friendly  officials and candidates  during its existence. Again, many members were surprised to discover that TWHBEA    had a PAC and that money under the registry’s name was being funneled to hand- picked politicians, not reflective of their views on animal welfare issues, without their knowledge. 


  Influentials  like Mitch McConnell, Hal Rogers, and Lamar Alexander are still serving.  Other   former heavyweights were engaged to push back  almost as soon President Richard M. Nixon signed the Horse Protection Act into law on December 9, 1970. Over the years they  went so far as to threaten in writing the USDA’s annual funding in order to keep the walking horse industry intact and functioning. They were instrumental in the amendment of the original HPA in 1976 and were responsible for foisting the HIO system, which became full scale  self-regulation supported by Steve Smith's relationship with Lamar Alexander while Smith   was serving a term as president of the TWHBEA. Self-regulation   left the USDA as a sort of   second string inspection force in partnership with the people former APHIS head   Dr. Ron   DeHaven once described, after he left his office,  as the “foxes guarding the hen house”.

 On the scorecard, although the industry folks  have had some rough patches in recent years, the outcomes for the industry position have been  affirmative  because the HPA has never been fully enforced as it was written and intended.  


The Present: Now comes the 2016 Annual  Fun Show, held in Shelbyville, Tennessee, over the Memorial Day weekend.  Here  a memorial of a different sort, a back to the future with new faces,  was held for owners and stake holders before the Saturday night session at the Blue Ribbon Circle Clubhouse on The Celebration grounds. Approximately 150 people were in attendance.


What’s Old is New Again: Once, the  industry’s longtime lobbyist Neils Holch, former  chief of staff to Mitch McConnell, guaranteed steady access to the Kentucky Republican over many years.  Holch moved on but his position has now been replaced with the new industry lobbyist,   Jeff Speakes, also of Kentucky,  who briefly addressed the crowd.


Speakes was forthright in saying that they ( the lobbyists)  didn’t see the USDA  rule coming until it was upon them, adding that this was because the HSUS had 19 lobbyists working on this issue full time, while the industry only had two, one of whom is Mr. Speakes,  who also represents other clients.


  He also told the crowd that the PAST Act had, in the last session, the largest number of co-sponsors of any piece of legislation that came before the Congress yet it never managed to get to the floor.  

Mr. Speakes is too modest about his role in protecting the industry's interests. In addition to representing Terry Dotson, the president of PSHA and a major business owner, Speakes has long professional ties from service on the staff of Kentucky Republican Hal Rogers, who also happens to hold the purse strings on the Appropriations Committee and is a walking horse industry vote.  Rogers  has had stiff words on more than one occasion to various USDA functionaries who failed to treat the walking horse industry with deference and Speakes has his ear.  Jeff Speakes is the new Neils Holch and his fine, behind- the- scenes, hand, is both  actively involved in bottling up PAST and in making sure that the proposed USDA rule never becomes an active rule.  To date  he has delivered on his industry paycheck.


The “new” combination of Charles Terry and Reese Smith  at the meeting   was counselor and owner of the largest breeding facility in the walking horse industry, Frank Eichler.  Eichler described himself at the Fun Show owners’ meeting as a triple A attorney, one of the “a’s”, a self described reference to the word a**h***.  


After telling the assembly that the industry had really not done anything on this issue ( presumably anti-PAST activity)   for the past six months ( essentially since the win in the mandatory penalties case), they were now playing catch- up ball,   that things were going to happen quickly, and they were behind.  Eichler briefed the attentive group on the basics of the proposed“what’s ahead” strategy for the industry.


The strategy as he described it appeared  to be centered on a large public push-back during the public comment on rule making for the current USDA proposed rule, running out the clock until the upcoming elections, and challenges in the federal court, with a focus on the court headquartered in Washington, D.C. 


The audience listened attentively, but     no one jumped up waving a checkbook,  when he said to get the process  started would require half a million dollars for rule making and half a million dollars for litigation.   In short, Mr. Eichler proposed (as the unnamed commentator featured at the top of this article wrote) to take the first swing and whip the bully, hopefully this time for good, and was clear that it was going to take a lot of money to do it. (Remember, too, that another industry lawsuit is already underway being led by Mike McGartland     of mandatory penalty fame   and that one is going to have to be paid for as well. ) 


Eichler is now    searching for the best legal talent that money can buy.  He said that three top law firms were under consideration to represent the industry, although one of them, he added, had turned down the overture because the firm  did not want to be associated  with the walking horse issue.


The   self-appointed seven person    leadership council for the industry that includes Eichler,  Duke Thorson, whose Thorsport Farm in Murfreesboro, Tennessee, was the subject of an undercover HSUS investigation in 2015, Stephen B. Smith, the current president of TWHBEA and son of the late Reese Smith, Jeffrey Howard, the son of David L. Howard, Terry Dotson, the president of PSHA and personal employer of Jeff Speakes, and Mike Inman, CEO of The Celebration, will make, according to Eichler, the final decision on which firm will lead the crusade against the USDA and its enforcement of the HPA.  It appears that , as Eichler described them “tax-efficient donations” ( meaning tax deductible donations)  made through FAST, an industry supportive non-profit, will likely be used as the channel to fund these projects. (Although Mr. Eichler said there were 7 on the council, he identified only 6).


The entire industry is being asked to step up and to help fund the fight. Comments from the floor expressed criticism of anyone showing a horse at a show that was not using SHOW as an HIO as part of SHOW’s inspection fees go towards paying industry lobbyists (shades of Friends of the Show Horse days).


Where Are We?: With the striking down of mandatory minimum penalties by a federal court, the   recent granting of the preliminary injunction for the McSwains, the owners of Honors, in the 8th circuit court   and the current  suspension of the HPA case by Administrative Law Judge Jill Clifton against the Edwards clan of Larry, Gary and Paige Edwards, including a decision to remove Paige from the case altogether, the industry, although down, is feeling more empowered in May   then of late.

The Edwards are, as a matter of record, both the trainers of Honors and the recipients of one of the longer HPA suspensions in a previous case ever awarded, along with former employee Ernest Upton. 

But,  what a happy coincidence:  with the 8th circuit’s injunction in his pocket, it is anticipated that Mr.  McSwain will enter Honors in this year’s Celebration.

The Celebration will certainly use the presence of the popular stallion to hype the horse show, hoping to manufacturea level of excitement that has been missing for years and wasn’t much elevated by the back to back grand championships of I Am Jose.

And, as there is unlikely to be a decision in the Edwards case before Celebration, the Edwards’ will be there to show the horse.  How’s that for a convergence in the heavens of the courts?       


The old horse trainer saying,  “ If I can’t beat you with my horse, I’ll beat you with the rule book!” seems to be taking on a    new application.  With the industry on the winning side in recent contests with  the USDA, also   recently    slapped on the wrist with critical comments about avoiding Congress   concerning the HPA in the appropriations bill language,  about 500 people attended the final night of the Fun Show. Many classes had 6- 8 horses, not enough to fill the ribbons but enough to make a respectable turnout. There was a larger crowd than was seen at the Trainers Show earlier in the year and conversations overheard on the show-grounds and in the stands were full of fighting words. 


As the rank and file has been fed a stew of fictions about the intent of the HSUS to eliminate the walking horse breed and  are routinely told that once the HSUS gets rid of the walking horse, they will turn their attentions to other show horses,  (“ They’re next but we can’t get them to believe it,” was a comment heard at the owners’ meeting.)  hostility towards the HSUS, the targeted “other” continues to build. 


The activities of other groups, individuals,  and organizations working to end the abuse, boycotting horse shows,  and supporting    the PAST Act go largely unmentioned ( although not unnoticed one supposes by Sister Milligan of the Gulf Coast Charity Show or by trainerJamie Lawrence who was convicted of assault after trying to hit a protestor at the 2015 Columbia horse show in Tennessee).

The chosen    enemy is the HSUS who strongly influences the USDA, they say, without considering the irony ofcriticizing the actions of the HSUS while overlooking the    influence and actions that the industry has taken   in the Congress which kept the PAST Act from getting the vote it deserved.  


It’s as if the walking horse culture, which is   largely a southern culture, is   now   using   the horse as an actor in one of its long running dramas, the desire to struggle against the federal government or against anyone else  telling them what they should or must do.  Struggle is in their DNA and the struggle to sustain the big lick horse is going to be a fight to the end.


Industry supporters anticipate that the “others”, although more troublesome this time than in the past and with more staying power than anticipated, will give up long before they do, or that the USDA will be cowed, or that the upcoming election will put politicians in place that will continue to ensure that no legislative action is taken that will upset, further, the apple cart.  Once again, the aim is to get through this year’s horse show season and to consolidate their position,  using the courts to do it since the court of public opinion has turned against them.


So, What if from the beginning  the USDA had actually rigorously enforced the HPA and had not been arm twisted by certain politicians to “partner” with an industry determined to evade and avoid the law?


The McSwains weren’t around in 1979 when the USDA issued its “final scar rule “, imposed only after the industry told the USDA in 1976 that there was no need for the government to impose the specifics of a scar rule because the industry would write its own rules to guarantee that no scarred horse would be shown. 


It should come as no surprise that self- regulation didn’t work then, either, but,  led by the industry,   we were off in the weeds of whether or not hair could be grown through the scar, how much hair was enough hair, what the real definition of a scar was, and on and on it went and continues to this day. 


  Due to lack of enforcement by the industry of its  own voluntary  scar rule, the Department determined that adding an official  scar rule in 1979 rule to its HPA program was required.  It has always been clear that horses foaled after the 1970 HPA and the  1976 amendment to the HPA was enacted should carry no scars on their pasterns  of the type associated with soring practices.  


The McSwains wouldn’t have bought a horse foaled many, many years after 1976, that had already had a scar rule violation as a two- year- old, the ticket issued by the industry’s own inspection program, with subsequent information taken over the years by the USDA,  if   the scar rule had been enforced as required by the law;  Honors would not have been scarred had the law been followed,    and   the  McSwains would have had no need to  be in court in 2016 .


What if the USDA had held scrupulously to the standard that “a horse shall consider to be sored, including by  the use of chains or boots, if these devices can reasonably be expected to cause inflammation”? 


The Auburn Study and the Ames Study both stated conclusively that inflammation comes about in performance horses through the raising and lowering of heels and toes in performance shoeing, as well as with the application of chemicals and with the use of   chains of various weights with and/or  without the presence of chemicals.  The benchmark for a sore horse is inflammation no matter how it is achieved.


Nowthe USDA has thermography studies that show inflammation is present in big lick horses that have been scanned with the latest technology. The presence of inflammation alone is a violation of the HPA.

  Swabbing of horses also shows conclusively the presence of agents used to deaden pain responses, to cosmetically conceal scars, as well as the presence of chemical  agents known to be used in soring. The only substance permitted on a horse’s pastern is petroleum jelly. Anything else according to the HPA is a prohibited substance. Prohibited means forbidden. 

The science is there;  where are the prosecutions?


What if industry participants had paid better attention to a scar rule presentation made in 2007 by the USDA in Lexington, Kentucky?  There,  the Department explained that inflammation also includes scurfing and that, as to the scar rule, horses should “therefore bear no scars whatsoever if the law were being complied with, as the scar rule applies only to horses that were foaled and trained well after the passage of the HPA and after the 1976 HPA Amendments.”


What if people who have had information taken by federal agents were actually prosecuted on a timely basis instead of waiting years to discover if they were going to win the HPA federal case lottery or get off with a benign letter of warning? There is room to feel some sympathy for people who are left twisting, sometimes for years, even as they continue to show horses, wondering if they are going to find themselves offering a defense in a federal HPA case. 


Due process should mean a reasonable time to be charged and get   a court date.  The  USDA should also  consider what message taking information on allegations of violation of a federal law  but failing to prosecute  sends to individuals within the industry.  Keeping horses out of a horse show by disqualifying them for that event not   only doesn’t get the attention of alleged HPA violators, it only makes them angry and more determined to get the horses through inspection the next time.  Then,  when they do, they claim this as evidence that inspections are both unfair and subjective when carried out by VMOs.


What -ifs aside, we are now 46 years into enforcement of the Horse Protection Act:  46 years of sored horses and denial of same; 46 years of tax payer funding to try to control the illegal activities of a small but dedicated group of individuals who feel that the law does not apply to them; 46 years of court cases and judgments and suspension lists, including a recent case brought against world grand champion trainer Chad Baucom for allegations of violating the HPA,  a decision in the HPA case of John Allan Callaway II dba Allan Callaway Stables, and a list of 7060s released in April on the USDA website   that seems to cover much of the walking horse world;   yet,  the business continues.  


What exactly are we doing   and why does the industry seem to have better luck in the courts that count than the USDA has? That’s a question for the ages.


The facts are that we are now focused on the second and third generation of people associated with suspect training of walking horses for exhibition,  as well as a second and third generation of judges hearing new  cases for different people who are  still getting caught for doing the same old things.


A case in point, Chad Baucom’s father passed away while serving a federal suspension for violation of the HPA with numerous horses; Chad’s son is now a young horse trainer with his own violations.   There are many examples of law-breaking fathers whose sons have followed them into the family business, which includes selling horses, some of them scarred horses, to people who may have no idea of the history, the law, or the studies that demonstrate as the Ames Study said so clearly:


 “  Soring consists of deliberate irritation of the pastern areas by chemical and/ or mechanical means until they become so sore that movement and or the bearing of weight causes considerable pain to the animal.


As a result the hind feet are placed further forward under the horse so that the rear quarters bear a greater percentage of the body weight.  Likewise when the front feet come into contact with the ground, they are hyper flexed and extended (snapped forward quickly).  Long hooves plus pads and weighted shoes aid in this action. 


This combination results in a long rear stride and a high, far –reaching action with the front feet. When everything works together in the proper rhythm the Big Lick is produced. 


In reality, the “Big Lick” should be called the “Sore Lick” because it is performed by a horse which, by all diagnostic criteria, is unsound and unfit to show.”


What’s Next? There really isn’t much left to say after that, except,   it’s time to acknowledge that this is no longer simply about the right to show horses or to do with your property as you see fit. This has become an industry high stakes poker game of    'we’ll raise a million dollars, get a blue ribbon law firm,  and see you in court'. 

It remains to be seen if the USDA has the cards and the talent to call the industry’s hand and to actually win one,  when the inevitable next challenge comes,  for the horses.