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FAST update released




Foundation for the Advancement and Support of the Tennessee Walking Horse released an update to the industry as it relates to Rulemaking regarding the Tennessee Walking Horse industry earlier this week. The letter also reviews a second lawsuit, referred to as Contender II. 

FAST president Kasey Kesselring emailed the letter, which can be seen in its entirety here.

Funding to support the industry’s efforts regarding Rulemaking come from donations to FAST. Total funds raised in FY 2017 were $450,775.35, which included proceeds from the FAST gala. The ending balance, after invoices and attorney fees, is $84, 824.74.

“Since our last update, several matters have happened,” the letter states. “As you recall, APHIS’s final rule that would have banned the use of pads and action devices with Tennessee Walking Horses and Racking Horses and replaced the DQP program with APHIS administered inspector program has been effectively suspended until further notice; presently, we do not expect it to be reintroduced — at least with the elimination of the performance horse … APHIS implemented a new focus on the inspection process, which has aligned their inspection process and SHOW’s much more closely with very positive results.”

The letter provides a breakdown of 2016 SHOW affiliated events, where the USDA was present at 12 shows, and the violations by category: bilateral, unilateral, Scar Rule, other, with the Trainers Show having a total of 60 (the most) violations, the Spring Fun Show having 42, and Gulf Coast at 41. A total of 230 violations were issued. 

The same breakdowns were shown in the letter for SHOW affiliated events thus far in 2017, with a drastically fewer number of violations issued at the six shows it has been present. The Trainers’ Show, for example had six and the total so far is eight. 

“As described above, the Rulemaking is most likely not going to be reintroduced as previously drafted,” the letter states. The Scar lawsuit has been drafted and can be filed at the appropriate time.” It is unlikely that will be necessary at this time.

“The Leadership Council continues to work on the Independent HIO and Objective Inspection process as we believe that is the only way to ensure the elimination of the subjective inspection process and eliminate soring in the industry once and for all,” the letter continues.

The letter then highlights details of a second lawsuit (Contender II), with Mike and Lee McGartland, Contender Farms and SHOW HIO (owned by The Celebration) being the named clients. This suit is funded by the legal fee recovered from an appeal with an ending balance of $118,161.43.

The summary of this case and its progress was also highlighted in the letter. The year-end report on this closed with good news and bad news, Kesselring said. In short, after renewed review and analysis of Freedom of Information Act (FOIA) laws, APHIS said it would no longer publicly provide information such as Official Warnings or complaints or lists without an individual FOIA request that would be granted or denied on a case by case basis. 

“Unexpectedly, in early 2017 the good news and the bad news became moot when APHIS posted a lengthy statement about its new position and at the same time it took down the last HPA list together with all Animal Welfare Act lists and reports,” Kesselring’s letter explained. 
For now, the Contender II case is considered closed. 

Where the challenges currently reside, Kesselring said, are in some administrative complaints. In 2017, APHIS filed more than 100 cases against about 200 participants in the 2016 Celebration. This resulted in a broad challenge by respondents to APHIS’ complaints. Several challenges have been filed in pending cases and appeals. Key points of those, which are outlined in detail in the letter, include:

1. “A challenge to the constitutionality of the appointments and authority of the USDA’s Administrative Law Judges (ALJs) and the Judicial Officer (JO). The Celebration and SHOW filed an amicus brief in a pending case in the Circuit Court for the District of Columbia, asserting that the USDA’s ALJs and JO are not constitutionally appointed as inferior or principal officers of the United States. The court heart oral arguments on this in May and will decide on the issue.

2. When these numerous cases were filed, the Office of General Counsel included many distinct cases in one complain, with as many individuals as 15 to 21 in one complaint. Further, APHIS listed and described any Official Warnings it had issued to a respondent in the complaint. This, however, violates the USDA’s policy that official warnings and complaints should be disseminated only in response to a specific FOIA request. When the Hearing Clerk sent the complaint to the numerous named respondents, APHIS disclosed to third parties the allegations against each individual respondent and the official warnings that might have been issued. This action by APHIS is being challenged.

3. Finally, some respondents have contended that a disqualification penalty under HPA 1825© cannot be issued unless the respondent has previously paid a fine or had a final order entered under 1825(b). This challenges APHIS’ practice of seeking a fine and disqualification in one proceeding against those who have not been previously in an enforcement action and had a fine assessed.”

The letter concludes with Kesselring’s review of FAST, highlighting the success of the FAST show, Gala, and auction hosted a few months ago where $105,000 was raised.  

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