Posted January 11, 2001

by Flannery Davis

On Jan. 10 the D.C. District Court heard a motion from the American Horse Protection Association for a temporary restraining order. If granted, the order would have prohibited the USDA’s Animal and Plant Health Inspection Service from implementing the 2001-2003 operating plan while the AHPA’s lawsuit is pending. The request was denied.

For a restraining order to be granted, the court is required to consider four factors:
1. whether the plaintiff is likely to succeed on the merits
2. whether the plaintiff will suffer irreparable harm in the absence of an injunction
3. whether other interested parties would be harmed if the requested relief is granted, and
4. where the public interest lies.

It is not necessary that arguments be persuasive in all four areas. Arguments may be weak in some areas and strong in another and the restraining order may still be granted.

According to its lawsuit and its motion for restraint, AHPA believes that neither the Horse Protection Act nor its regulations allow the USDA to delegate its enforcement authority to anyone else, for example, horse industry organizations. AHPA alleges that it was the intent of Congress that horse industry organizations train, license and discipline designated qualified persons; and that DQPs have only one role--to assist the management of horse shows and sales in identifying and disqualifying sore horses from showing or being offered for sale. The AHPA states that by allowing HIOs to impose penalties, APHIS violates the Horse Protection Act and its regulations. According to the AHPA, “Authority to enforce the Act rests exclusively with the Secretary [of Agriculture]...or referrals to the Attorney General to institute criminal prosecution.”

The AHPA also made note of the fact that delegation of an agency’s responsibilities is particularly prohibited when there is the possibility of conflict of interest on the part of those to whom the responsibility is delegated. The AHPA motion used the composition of the board of directors of the National Horse Show Commission to illustrate the potential for a conflict of interest.

To demonstrate imminent harm from implementation of the 2001-2003 operating plan, AHPA stated that the plan will become effective as soon as it is signed by an HIO and would remain in effect for three years. AHPA also contended that irreparable harm would occur because HIO suspensions for violators are shorter than those APHIS would impose under the HPA and that the operating plan makes no provision for imposition of monetary fines. AHPA also pointed out that “a case may disappear because of the ‘conflict resolution’ process.” According to AHPA, the plan provides for a conflict resolution process that essentially eliminates the USDA’s ability to punish violators if a DQP disagrees with a VMOs findings that a horse is sore.

To show that the defendants would not suffer any harm if the restraining order were granted, AHPA pointed out that injunctive relief would "do nothing more than insure that the defendants do what the Horse Protection Act already requires: enforce the Act by instituting civil or criminal enforcement proceedings in appropriate cases."

The AHPA motion cited the court’s opinion in Fund for Animals, “there is strong public interest in meticulous compliance with the law by public officials,” to support its opinion that prohibiting use of the operating plan is in the public interest. AHPA also states that the defendants themselves have acknowledged that APHIS’s enforcement is crucial to the success of the Horse Protection Act.

Robin Lohnes, executive director of the AHPA, said that the court’s denial of the motion for restraint was “simply a procedural issue and has absolutely no bearing on the case.” Regarding the lawsuit, Lohnes said, “The gist of it is we believe that USDA is unlawfully delegating its authority as it relates to allowing HIOs to institute or prosecute enforcement actions or impose penalties. In the case of a DQP and a VMO who have a difference of opinion as to whether a horse is sore or not, they would go to conflict resolution. The department has stated in the operating plan that if the HIO will impose its own penalty on the violator, the USDA will drop the case. And that is the issue. The penalties that the majority of HIOs have on their books are much lighter than the USDA’s.”

Dr. Ron DeHaven, deputy administrator for animal care at the USDA, is one of the defendants named in the suit, along with agriculture secretary Daniel Glickman and Dr. Craig Reed, administrator for APHIS. Regarding the operating plan and the suit, DeHaven said, “Until we have instructions otherwise, it’s business as normal. The operating plan sent out on December 27 is valid in every way and if someone were to send in a signed agreement on the plan it would be accepted.”