Editor’s Note – The following letter is from Dr. Kasey Kesselring, President of the Foundation for the Advancement and Support of the Tennessee Walking Show Horse. FAST has set up a legal fund to accept donations made to aid in the defense of the show horse from potential rulemaking submitted by the USDA that would be detrimental to the show horse.
Novelist and philosopher Ayn Rand said “We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.” This rang particularly familiar to me as I reflect on the state of our walking horse industry and the role of government over our show horse. In the past decade the walking horse industry has fallen victim to a heavily influenced United States Department of Agriculture by the Humane Society of the United States. The relationship between the HSUS and APHIS personnel is well documented and so it comes as no surprise that the increased government scrutiny over our show horse industry has resulted in the decay of our industry. The value of our horse has declined, breeding has declined, sales have declined and the impact on regional economic development has declined. The number of employment opportunities within the industry has taken a staggering blow and many trainers, grooms and stable hands have found themselves out of work. Real estate in the middle Tennessee area has dropped significantly among industry participants. Once considered a popular trend for second home and/or farm ownership in middle Tennessee has been replaced by large numbers of farms on the market for sale or sitting empty and desolate. Economic development from tourism for hotels, restaurants and local businesses is a fraction of what it once was.
The industry has never denied the need to improve training techniques and to extinguish training practices that are not in keeping with the public interest, the wellness of the horse or the future sustainability of the show horse. Indeed, the industry has taken deliberate and costly steps to meet and exceed the expectations of the Horse Protection Act (HPA). Despite the substantive improvements that have been made, the industry continues to face a level of scrutiny inconsistent with the intent of the HPA. Regardless of the initiatives undertaken by the industry, neither APHIS nor HSUS has acknowledged any progress made by the industry and instead continues to move forward in an attempt to eliminate the performance show horse, a historical foundation of the breed and the economic driver of the industry since it inception in the early 1900’s. While there are those who may not appreciate the performance show horse or horses being used for show purposes at all, should our government permit lobbying organizations like the HSUS to influence the demise of the performance show horse by instituting a rule making process which would serve to extinguish the performance show horse?
Several years ago, APHIS sought to levy mandatory penalties on the industry and required all certified HIO’s to adopt these mandatory penalties or face decertification. Inconsistent with the spirit and intent of the HPA and lacking in due process, industry leaders sought relief in the courts and filed a lawsuit against the USDA commonly referred to as Contender I. Sadly, its initial attempt at justice was denied; however, not lacking in perseverance, an appeal was filed and the industry prevailed on appeal and the mandatory penalties were deemed disproportionate with the HPA; the return of more than $250,000.00 in legal fees soon followed.
Concurrently, the USDA has sought to embarrass the industry and its participants while placating to other organizations such as the HSUS and FOSH by publishing lists of alleged HPA violators on its government website, for individuals that have never had any type of notice or hearing – declaring them a “HPA violator” without any due process. These lists are often republished by other organizations such as FOSH. Despite a formal request to remove those lists from publication as a violation of privacy, APHIS continued to publish the lists. Once again, industry leaders were pressed to find relief in the courts and Contender II was filed and seeks to eliminate these lists from publication. Many of the names on these various lists contain names of individuals from whom information has been taken on a horse for an alleged violation of the HPA. Since the filing of Contender II, certain lists have been removed from the APHIS website but not all. At present, the government is fighting hard by trying to delay the case as much as it can. The agency made a preliminary move to sever SHOW from the case, which is pending before the court. APHIS has refused to provide the administrative record relevant to industry claims. Given that the challenged procedures were not adopted according to rule making authority and that they are obviously contrary to the statutory procedures of the HPA, obstruction and delay are APHIS's best strategies at this juncture. Legal counsel is currently working to compel the agency to produce the record so that the case can move forward. These procedural battles are time consuming for the industry and for the court. The Judge is very conscientious and will produce reasoned opinions; however, with a heavy docket, it takes time for his decisions to be produced.
With a failed attempt at passing the PAST Act in the last legislative session, it comes as no surprise to the industry that APHIS is now attempting to incorporate much of the PAST Act through rule making essentially by passing the legislative process. It will make a concerted effort to accomplish this before the November election where it is possible depending on the outcome of the election that leadership changes could take place throughout various branches of the government. The industry is again bracing itself against the rule making process and has retained the legal services of Kelley Drye & Warren, a Washington, D.C. based law firm with considerable experience in government litigation involving animals.
As published on their website:
Animal Law
Litigation involving animals and animal laws is proliferating. More and more animal-related statutes are being enacted and regulations promulgated at the federal, state and international levels. For those who handle or deal with animals in connection with food and drug production, land use, agriculture, research, entertainment, pet industry or other uses, the stakes have never been higher.
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Amid the momentum achieved in Contender I and Contender II, the industry has also seen additional achievements in recent court proceedings. In USDA vs. Edwards, a case where the USDA was seeking to prosecute the first post-show scar rules, Administrative Law Judge Jill Clifton had this to say regarding the scar rule: “….the reason I don’t like scar rule cases is I think the determination of whether there is a scar is such an unquantified process that there is too much variety in the result, it’s not predictable, it’s not knowable how people are going to judge it. It’s just very, very, very damaging to the industry, it’s damaging to the riders, can you imagine the dismay of a rider who had nothing to do with the condition of the horse finding out that his performance doesn’t count?” Judge Clifton continued the case until next year after the USDA introduced evidence not supplied to the defense prior to the trial.
In addition, the McSwain family filed a suit regarding the inspection procedures of its horse, Honors and the lack of due process the USDA has given Honors prior to disqualifying him. They have been successful in the preliminary stages by achieving a temporary injunction against the disqualification of Honors unless there was an established form of due process before any such disqualification took place. This is a precedential case which will provide support for all in the industry against the somewhat arbitrary and capricious methods by which USDA VMO’s may disqualify a horse for a violation of the scar rule without due process and without any substantive proof that alleged disqualifying tissue is the result of a scar.
Lastly, industry leaders have funded a new research study by highly qualified experts soon to be released that will speak profoundly about the allowed equipment used in all divisions of the Tennessee Walking Show Horse. Regrettably, the damage to our horse at the hands of USDA VMO’s over alleged violations has already been done, but the research promises to write a new chapter for our show horse and our industry.
Sadly, the only relief the industry has been able to realize has come by way of the courts and so we will again work together to chart a course to defend the future of the show horse. Over the past several years, the Foundation for the Advancement and Support of the Tennessee Walking Show Horse (FAST) has raised needed funds to preserve the future of our show horse which includes Contender I, Contender I appeal and Contender II. The return of legal fees from Contender I will aid in funding Contender II. A fundraising committee has been established to begin the process of raising funds to support the legal fees needed for the industry to defend itself against the rule making attempt by the USDA.
There is no other time in the history of the show horse than now to support such an important initiative. Considering donating with the confidence that a highly experienced law firm will be representing the best interests of the industry. As a result of the hard work by trainers, owners and leading organizations within the breed, our show horse is gaining measurable momentum against the overreaching and at times incorrect inspection protocol by the USDA. FAST will accept donations to the Legal/Preservation Fund on its website at www.FASTwalkingshowhorse.org. Donations to the fund will be used exclusively for the legal defense fund associated with the rule making process. No deductions or transfers for administrative costs of the FAST Foundation will exist nor can funds be used for any other purpose. With your help, we can continue this momentum and work together to preserve the show horse for generations of future Tennessee Walking Horse enthusiasts.
Dr. Kasey C. Kesselring
President, FAST