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Celebration Seeks Protection For Exhibitors



The Tennessee Walking Horse National Celebration, through its counsel Kelley Drye & Warren, sent a letter to USDA-APHIS Administrator Kevin Shea requesting APHIS officials conduct lawful inspections at the upcoming 78th Annual Celebration.  In the letter, The Celebration reaffirmed its commitment to ensuring the welfare of all horses competing.  “The Association is fully supportive of all lawful measures that ensure compliance at the Celebration by those subject to the HPA.”

The letter specifically requested the following:

“APHIS will not make any finding that would result in a horse being disqualified from the Celebration for non-compliance, unless APHIS provides sufficient notice and opportunity for the owner(s) of the horse to be heard (including an appeal) on that finding before the horse is disqualified;

or, alternatively,

APHIS will (i) refrain from making any final finding of non-compliance until after the horse is completely done showing at the Celebration; and (ii) provide sufficient notice and opportunity to be heard on any final finding that APHIS makes after the horse is completely done showing; if, after notice and opportunity to be heard and appeal the non-compliance finding is upheld, then and only then may the horse be declared to be disqualified retroactively (i.e. after being allowed to complete);

and,

APHIS will not conduct any type of unlawful inspection of a horse at the Celebration. (Examples of unlawful inspections include, without limitation, those noted in Section II below)

The first request by The Celebration is based upon the recent ruling in the McSwain v. Vilsack where the judge moved to preliminarily enjoin APHIS from disqualifying Honors at this year’s Celebration, noting the procedure used by APHIS to disqualify Honors violated the McSwain’s rights under the Due Process Clause.  “In granting the motion, the court found that they (McSwain) had shown a substantial likelihood that APHIS’ actions and procedures violated the Constitution.”

The Celebration, in light of the McSwain Order, expects APHIS to extend the court’s order to all horses, and not just Honors.  The court in McSwain held, “that Plaintiffs and other horse owners have a constitutionally protected right in showing their horses,” under the Due Process Clause.

In addition, the Celebration has urged and continues to urge in this letter for APHIS personnel to conduct lawful inspections. The Celebration, along with the industry, has repeatedly sent videos and information outlining the unlawful inspection techniques.  In an exhibit to the letter, The Celebration sent USDA a video of an unlawful inspection being conducted by a VMO whereby the VMO is palpating the palmar digital nerve to cause the horse to flinch.

With regards to the scar rule and the USDA’s finding at the last two year’s Celebrations, Dr. Paul Stromberg, a professor of veterinary pathology and a diplomate in the American College of Veterinary Pathologists, criticized the USDA protocol stating, “the current method employed by APHIS inspectors for scar detection is subjective, clearly inaccurate and has the potential to be applied capriciously.”  He went on to state the USDA findings, “betray a lack of understanding of basic pathologic principles.  It’s not medically rational or scientifically defendable.  It’s just pseudoscience and poor medical practice.”

The biopsies conducted by Dr. Stromberg over the last two Celebrations have shown that none of the horses disqualified by the USDA VMOs met the criteria for a Scar Rule violation.  The Celebration in the letter clearly states that if the USDA VMOs continue to use the current methods for determining compliance for scars,  it “would be unlawful.”

In the closing of the letter the Celebration asks USDA to voluntarily reevaluate its past approach to horse inspections at the upcoming Celebration.  In addition it stated in closing, “The Association is willing and able to work with APHIS to assist the agency in satisfying its obligations under the HPA in a positive, lawful and Constitutional manner.

Click here to view entire letter.

Click here to view exhibit one outlining the improper palpation technique.

Click here to view the exhibits to the letter.

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