Posted March 19, 2001

by Flanner Davis
copyright 2001

Let me begin with an apology. I'm sorry to have had to drag you - screaming and kicking no doubt - detail by detail through the current lawsuit by the American Horse Protection Association against the USDA. I have flogged you with information, probably far more than you wanted to know. But it had to be done. And you, right along with me, had to have all the facts.

Now it's time for something a little more digestible. I have read every brief and I have left my effort to report "just the facts" behind. Here's the short version of American Horse Protection Association vs. USDA, at least my take on it.

The Bottom Line: AHPA is suing the USDA to stop iimplementation of the 2001-2003 operating plan because they believe in essence that certain HIOs bring political pressure to bear and prevent the USDA from implementing a plan that carries sufficient penalties. AHPA states that the USDA found several flaws after a year of using the '99 plan. USDA corrected those flaws in the 2000 plan, but certain HIOs fought until they got the USDA to back down to the third iteration of the plan, which certain HIOs signed just before the Celebration. Now those previously identified problems remain unaddressed in the 2001-2003 plan. Because of the length of the plan, the damage to AHPA members will be considerable. In addition to the discomfort caused by watching performance horses they believe to be sored, they also suffer monetarily because their sound horses are not as flashy as "big lick" horses and therefore aren't likely to win against them.

What AHPA Alleges in the Suit: AHPA believes that the Secretary of Agriculture cannot delegate her enforcement authority to any third party, including HIOs. They insist that DQPs can inspect and disquality horses, but cannot establish penalties. Only the secretary can set penalties and enforce the Horse Protection Act.

What USDA Alleges: USDA states that the AHPA doesn't even have standing to bring the suit. Further, they say that whether or not the USDA can delegate enforcement authority is a matter of law and therefore cannot be argued. USDA says the real question instead is whether or not the agency's method of enforcement is even open to judicial review. USDA says it's not open to judicial review because "Congress specifically provided for participation by the show managers in enforceing the provisions of the HPA." According to previous case law, an agency's discretion can be questioned by the court only if (1) Congress did not specifically grant the agency whatever power is in question (in this case the ability to delegate enforcement, or (2) if Congress did not directly address the issue, "then the court must defer to the agency's interpretation so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language."

AHPA Says What A Load AHPA says that the question of standing was already decided in their favor in AHPA vs. Block in 1985, where the court ruled that AHPA did have standing to request review of the secretary of agriculture's rulemaking decisions under the Horse Protection Act. AHPA also says that Congress did not specifically address the question of delegating enforcement authority and that the USDA does not satisfy (2) above either. AHPA says that the USDA's delegation of enforcement is not consistent with the statutory purpose of the HPA Regulations. The regulstions were written by Congress in order to make the HPA stronger because soring had not ended through HPA enforcement and since Congress wanted it to end, they were making things tougher. Delegating enforcement to DQPs and continued weakening of the operating plans have not made things tought. Therefore, the USDA's delegation of enforcement is cleary not "reasonable" nor is it "consistent with the statutory purpose."

USDA Says Oh, You Are So Wrong: USDA says that AHPA's interpretation of the Horse Protection Act and operating plan is "selective and distorted" and "unrelated to the actual language and intent of the statute." USDA says the only way AHPA can think that the HPA doesn't allow DQPs to enforce is by ignoring a key phrase in the law, which says that show management can appoint qualified people to diagnose and inspect horsees "for the purpose of enforcing this Act." USDA insistat that it has not abdicated its enforcement authority and that just because HIOs can enforce doesn't mean that USDA can't too. Further, USDA attorneys at the Department of Justice could barely control a tone of incredulity when they pointed out that a ruling in favor of AHPA would result in fewer violations being detected and punished, not more as AHPA seems to think. USDA states: "AHPA appears to assume that, if left to APHIS, each and every violation of the Act would result in a penalty." Because of lack of funding, USDA can't send VMOs to approximately 90 percent of shows. If HIOs can't enforce and VMOs can't attend, where does that leave the horse? Regarding AHPA's insistence that it does have standing to bring the suit, the USDA attorneys pulled out all the stops. I don't know what they said. Well, I know what they said. I don't know what they meant. There was Latin involved. But I think it's safe to say what they meant was, "Hooey!"

AHPA has asked the judge to be allowed to argue the case orally. The judge hasn't decided yet whether to do that or make a decision based on the filings. the language is in the USDA's Feb. 28 brief, if the judge decides to let the lawyers talk, I'd love to be there.