FAST President Issues Year End Status Report
Tuesday, January 3, 2017
Dear Friends of the Tennessee Walking Horse Industry:
I regret that it has been two months since my last report to you. As we neared the end of November, I conferred with our team of consulting attorneys and sadly there had been no movement and nothing much of substance to report to you. Now that we have reached the end of December, I have conferred with our consulting attorneys again, but sadly there is very little to report.
Who are the clients: The Celebration and its Board of Directors represented by Mike Inman, CEO
How is this suit funded: This suit is being funded by donations from friends of the industry.
Fund balance is as follows:
Total Fund Raised $539,497.26
Less invoices paid thru 12-31-2016 $508,680.92
Who provides direction for the attorney’s in this case: The Celebration Board of Directors represented by Mike Inman, CEO has appointed a Leadership Council comprised of Frank Eichler, attorney, Mike Inman, Celebration CEO, Jeffrey Howard, Celebration and FAST board member, David Howard, past Celebration board member, Steve Smith, TWHBEA President, Terry Dotson, PSHA board member and Duke Thorson, WHOA board member. The leadership council appointed Frank Eichler as the point of contact for KDW. The FAST Board President is privy to the invoices and work of KDW prior to approving payment of their bills. The Celebration is also monitoring the progress and privy to the work of KDW.
Summary of the case and its progress:
The industry filed its response and the USDA has filed their proposed Rule. We do not know how the final version of the USDA’s proposed rule reads and do not know when it is going to be released for review. In the meantime, the attorneys representing the industry are making preparations to file an injunction should the proposed rule be adopted in its original released format removing the pad and action device and limiting shoes to a keg shoe. Simultaneously, diligent research and data is being collected to challenge the application of the scar rule.
Who are the clients: Mike and Lee McGartland, Contender Farms and SHOW, an affiliate owned by The Celebration.
How is this suit funded: This suit is being funded by legal fee recovery from Contender I/Contender I appeal.
Fund balance is as follows:
Total fee recovery $268,148.04
Less invoices paid through 12-31-2016 $134,168.96
Total Balance $160,228.08
Who provides direction for the attorney’s in this case: Mike and Lee McGartland and SHOW/The Celebration represented by Mike Inman, CEO.
Summary of the case and its progress:
The year 2016 closed with a mixture of good news and bad news about the federal lawsuit in Fort Worth challenging the USDA determining liability for violations of the HPA using the Protocol for Foreign Substance Penalty, the IES Investigative and Enforcement Process and the FOIA Reading Room Enforcement Actions publications that identified about 15,000 people as violators of the Act, even though these people never were charged with a violation of the HPA, never received notice of an investigations and never had an opportunity to show they were innocent. The good news is that all but one of the FOIA Reading Room Enforcement Lists have been taken down. This includes the lists identifying people as violators of the Act whose horse did not pass a DQP inspection and who received an HIO ticket. Recently the USDA announced it was discontinuing publication of these HIO lists, so this appears to be a final decision. Of course, it could always change its mind. The same applies to the multiple searchable enforcement action lists issued based on VMO inspections or a foreign substance swab test results. The USDA announced it would suspend the foreign substance publications, and took down the lists. That leaves one list – the APHIS Enforcement Actions list published under an unlawful construction of the Freedom of Information Act. This list contains both HPA and AWA enforcement actions, and publishes Official Warnings and Forms 7060 issued by APHIS from 2009 through August 2016. In September 2016, we submitted a Third Amended Complaint contending that the APHIS FOIA Reading Room Enforcement Actions list was published in violation of the Freedom of Information Act, the Privacy Act and HPA §1825(b).
Since serving that complaint, the USDA has ceased posting to this list, and even removed the McGartlands, Plaintiffs in the case, from the list. The bad news is that though we have achieved much of what we sought in filing the lawsuit, we did not obtain the results by a court’s order that would protect us in the future from the USDA’s unlawful and unauthorized conduct. That is because, over the ten months since filing, the court has not definitively ruled on numerous outstanding motions that impede us from moving for a final disposition. One suspects this lack of attention to our case results from the several judicial vacancies in this district and the fact that the State of Texas continues to file its numerous challenges to the federal government’s wide ranging regulations in the Wichita Falls Division of the Northern District of Texas, where Judge O’Connor is the only Judge. Last week Chief Justice Roberts bemoaned the fact that because of numerous vacancies, some district courts have dockets of as many as 500 cases. Judge O’Connor has a very large docket; some cases are urgent.
For example, on Saturday December 31, 2016, he issued an injunction against the government in a case filed in late August involving the Affordable Care Act. He is busy for certain; however, the delay has worked to our advantage in other ways. Several decisions from the Tenth Circuit, D.C. Circuit, Fifth Circuit and Supreme Court have undercut the government’s ability to keep cases like ours out of court on the government’s contention that the plaintiffs lack standing, or the issue is not ripe for decision or that the challenged action is not a final agency action. Some helpful decisions were written by Judge O’Connor. Delay has brought the imminent change in administrations, with unpredictable consequences, but with campaign promises to limit agency regulatory action. Further, with the recent proposal by APHIS to adopt new regulations, this case may serve as a vehicle to challenge or clarify unlawful or unauthorized regulations related to enforcement and publication. We will remain patient and monitor carefully.
NEXT STEPS—Continue Phase II of Fundraising for $500,000.00 to bring our total to $1,000,000.00 It is clear that a legal undertaking of this magnitude is time consuming, highly technical and costly. The alternative? We do nothing, accept the conditions of the USDA via rule making and allow the show industry as a whole to be reduced to a keg shod horse. Clearly, for those who have enjoyed the Tennessee Walking show horse for generations, the latter is simply unacceptable. Donor fatigue is a concern for everyone in the industry; however, this fight, if we lose it, will gravely affect the livelihood of many within our industry, not to mention the devastating affects on the economic impact especially in the southern region of the United States and lastly and most importantly, the passion that will be ruined for the thousands of exhibitors that have enjoyed and continue to enjoyed exhibiting our show horse in all its various disciplines. As we continue this fight and our fundraising efforts, it is imperative that this vision is not limited to just horse owners and exhibitors. If the show horse as we know it is reduced to a keg shod horse for exhibition purposes as the proposed rules suggest, the economic impact will be devastating.
Consider the effects on these industries; we need to get them engaged:
• real estate brokers and agents
• feed, hay, shavings growers, manufacturers, distributors
• agricultural equipment owners, sales and repairs
• agricultural facility product suppliers
• equine product sales, suppliers, distributors
• truck and trailer sales and repairs
• agricultural and property insurance brokers and sales
• municipal taxing authorities who stand to lose significant tax support if the industry is devastated by these rule changes and industry supporters begin to abandon their property interest in middle Tennessee.
• Restaurants, fuel stations, cleaners, department stores—all of those places that industry participants patronize during and in between horse shows
• the many employees who earn their living within the industry—trainers, farriers, grooms, farm assistants
• the State of Tennessee who collects substantive tax support from the many corporate structures registered throughout the industry
• the many, many charities that benefit from the horse shows the industry conducts throughout the year
FAST 2016 in review:
Quite a few years ago now, I sat in the conference room of my office as Kathy Zeis and I sorted through the tome of paperwork required to develop our articles of incorporation and by laws for FAST as well as all of the required IRS paperwork to receive approval for a tax exempt charitable organization. It was our mission then and continues to be to have an organization that is actively working on behalf of the industry to preserve, protect and advance the show horse. Over the years, FAST has infused more than $1 million dollars into a number of worthy causes that have supported and advanced the breed from funding research projects to scholarship funds for young exhibitors to new and sustaining horse show support and legal efforts to preserve and protect the show horse. As we close out 2016, I am pleased to report that FAST has raised nearly $1,000,000.00 dollars that has gone to support the following causes:
• legal defense fund against USDA rule making
• legal defense fund Contender II to challenge the legality of the USDA’s publication of information
regarding alleged HPA violations
• the FAST horse shows to support the general fund and legal fund
• the Spencer Benedict Stables charitable fund to assist in veterinary medical care expenses following the devastating toxin attack on their horses
Zero dollars of your donations are used to offset any foundation administrative expenses; 100% of donations are used for their designated purpose. Throughout the year, FAST will host one or two horse shows for the expressed purpose of raising funds to assist in offsetting the modest costs of administering the foundations efforts: this includes a required annual audit, bookkeeping and donation acknowledgements. No FAST board member is compensated for their efforts; instead each board member not only volunteers their time but has also contributed to the fundraising efforts of the foundation. The impact of the foundation on the industry has been nothing short of transformational, and it will continue to be our mission to serve the best interests of the show horse. On behalf of the FAST board of directors, I wish to thank each and every donor who has made a contribution to the Foundation. However large or small the gift, the support of the industry is paramount to our success and collectively we have the ability to have positive impact on the future of the industry.
Our very best wishes for a healthy and prosperous 2017. Working together for this common cause, it is my fervent hope that the future of the show horse will remain bright, that the wisdom of the judicial branch will see its way to strike down the government’s unlawful publication of records and that a new administration will see fit to determine that the USDA’s recent proposed rulemaking is an overreaching act influenced by a politically motivated organization that has infiltrated the direction and decision making of the USDA’s APHIS and will determine that the negative impact of such rule making will devastate a major economic driver throughout the country and particularly in the southern United States.
Dr. Kasey C. Kesselring