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FAST January 2018 Status Report

Since the June 2017, FAST Status Report, FAST has continued to be actively involved in legal issues that seek to make the enforcement of the HPA more effective, fair and lawful. As previously reported, Contender II, which was voluntarily dismissed in February 2017, sought to have the USDA refrain from posting false or misleading information on its website that identified participants whose horse may not have passed an inspection as violators of the HPA.  About 15 lists identified almost 15,000 people as offenders, though none had been lawfully charged or adjudicated as having violated the Act. On February 3, 2017, the lists were taken down by the USDA, thus accomplishing the goal of the lawsuit. The suit was dismissed by the plaintiffs; even though there was no assurance the lists would not be reposted.

The lists have not been reposted, and in two lawsuits filed against the USDA in February 2017, the USDA argued that the lists should not be posted because of concerns arising under the Freedom of Information Act and Privacy Act. On August 14, 2017, the District Court in California dismissed Animal Legal Defense Fund v. USDA on these grounds. That case is on appeal. On January 18, 2018, the District Court in the District of Columbia dismissed PETA v. USDA, which sought to have the USDA reinstate the information on its website. The Court found most of PETA’s claims moot because the information sought under the Animal Welfare Act had been reposted but the HPA information had not. The Court found there was no reasonable likelihood that the USDA would post information that should not be posted, or fail to post information it should post.  The Court found that the documents that had not been reposted did not fall within the scope of the FOIA reading-room requirements. It is doubtful the USDA will post the HPA information that Contender II sought to have removed. Contender II was a success. 

The dark cloud over the industry from the almost 200 administrative cases filed after the 2016 Celebration has still not blown over. Though many of the cases have settled with no admission of liability, a small fine and short disqualification, a significant number remain pending. While the respondents in those cases have hired their own attorneys, FAST continues to provide assistance that might benefit the respondents and their attorneys. FAST’s support includes challenging the constitutionality of the appointments of the USDA’s Administrative Law Judges and the Judicial Officer. FAST supports the filing of a brief on these issues that is presently before the United States Supreme Court, as well as providing assistance in appeals pending in the Circuit Court of Appeals in the District of Columbia. 

The D.C. Circuit appeals not only raise the ALJ and JO issues, but, as described in the June 2017 Status Report, seek favorable rulings on whether those who are for the first time accused of violating the HPS can be disqualified in the same proceeding if they are found to have violated the Act, or can only be fined. The appeals also challenge the fairness of the USDA’s proceedings as violating the Administrative Procedures Act and Constitution’s due process requirements. The appeals have been put on abeyance until the Supreme Court decides the case before it, which is an SEC ALJ appointment case.  

Once again, the collective efforts of the Walking Horse industry to seek justice and equity in the administration of the HPA continues to achieve favorable results. The work that has been done and continues to be done on behalf ot he industry is getting us closer to a sustainable path for future generations of walking horse enthusiasts to enjoy our show horse.

We are blessed with very dedicated and committed leadership within the industry. David Broiles, our consulting attorney, continues to provide brilliant guidance as we work to address critical issues before the courts, and I want to acknowledge his unwavering commitment to seeking justice on our behalf.

Dr. Kasey C. Kesselring, President
The Foundation for the Advancement and Support of the Tennessee Walking Show Horse (FAST)

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