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Letter to the Editor



Dear David:
The horse shows in Middle Tennessee over the July 4 weekend which I attended were truly outstanding. The shows were well attended, the horses were superbly conditioned and presented and, most importantly, the federal government was not present to arbitrarily disrupt this great American tradition of horse shows.

Of course, the 4th of July is more than horse shows or other activities which we participate in to celebrate our independence. Fundamentally, it is the celebration of our independence from oppressive government, whether it be from King George III of England or the U.S. Department of Agriculture. The time has arrived in the walking horse community’s relationship with the USDA to declare our independence from this oppressive administration of the Horse Protection Act and chart our own future destiny under different regulatory arrangements.

The foundation for this belief stems from the oral argument in my appeal from a soring charge against me at the Sixth Circuit Court of Appeals in Cincinnati on June 21, 2002. The facts in the case against me were very straight forward. The alleged violation occurred at the Trainers’ Show in 1998. Charles Thomas, in his official capacity as a steward of the National Horse Show Commission, checked my horse while the horse was ridden with action devices and concluded the horse was not sure. He so testified at the administrative hearing conducted by the USDA. Two federal veterinarians palpated my horse 15 minutes after this test for soreness by Charles Thomas and concluded and testified that, in their opinion, the horse was sore. The Administrative Law Judge would not accept Charles Thomas’ testimony that the horse was not sore because he did not palpate the horse’s feet.

At the Appeals Court, I cited those cases in the Fifth Circuit Court of Appeals in which that Court has ruled in two successive cases five years apart that palpation is not a reliable indicator of soreness. In light of this, the Sixth Court panel questioned the USDA attorney extensively to justify their reliance on palpation alone as the proper test for determining sore horses. The best the USDA attorney could say to the Court was that palpation is a common medical technique which has been used for many years by medical doctors, explaining that is a doctor palpated your hand and it was sore that you would move your hand. In rebuttal on this point, I pointed out to the Court the fallacy of using a medical technique designed for diagnosis of human conditions and its inappropriateness for use on animals. My illustration to point out the fallacy of the USDA’s position is that if you pick up the foot of an unbroken horse to palpate its foot, this would be roughly equivalent to grabbing the testicles of a gorilla - the results would be highly unpredictable. And, this unpredictability of an animal to the palpation technique is the fundamental problem.

I doubt that you could ever break a gorilla to stand perfectly still while you palpated his testicles and I do not believe you can break a horse to be 100% predictable when you palpate his feet. Furthermore, even if a horse could be broke to this degree, it would not be desirable, for as Harper Lee correctly told us, it’s a sin to kill a mockingbird.

I presented to the Court my arguments for the unconstitutionality of the Horse Protection Act. My arguments were based on the two recent U.S. Supreme Court cases - the Lopez case and the Morrison case. In the Lopez case, Congress passed a law making it illegal to possess a firearm within 1000 yards of a school. In the Morrison case, Congress provided a federal civil remedy for rape. In both of these cases, Congress simply federalized conduct that was already a crime under state laws. The Horse Protection Act is yet another example of federalizing an activity that was already regulated by the states. The Supreme Court in these two cases reviewed the entire history of the Commerce Clause and concluded that the proper test is whether the regulated activity has a “substantial impact” on commerce. I presented to the Court that for the sake of argument we would assume that every possible argument that the government could make was true - namely, that a sore horse has a competitive advantage and that if the sore horses that the government ticketed in the year applicable to my case has been allowed to be shown and won - this still would not meet the Supreme Court’s test of a “substantial impact” on commerce. The most that could be said would be that somebody might have gotten a red ribbon or a yellow ribbon when they might have gotten a blue. But, this condition does not have a “substantial impact” on commerce. The logical conclusion of the government’s argument is that those horses that were ticketed and not allowed to show were more valuable than those horses that did show and won their classes - a truly ludicrous proposition.

The USDA’s argument was that the horse industry in the United States - aggregating all breeds - has a total economic impact of millions of dollars. The government made the same argument in the Lopez case, aggregating the total economic impact of all crimes committed using firearms. In the Morrison case, the government did the same thing, showing the aggregated economic effect of rape. The U.S. Supreme Court rejected both of these schemes. The Court said that the test is not the aggregated economic effect of some activity, but whether the “regulated activity has a direct and substantial impact on commerce.” In the case before the Sixth Circuit, there is no question but that the regulated activity is the showing of an alleged sore horse.

Finally, in my own case, the USDA did not serve the Final Order of the Judicial Officer on me for 34 days. This is admitted in the record by the USDA. The reason given to the Court was that the Clerk at the USDA sent me the wrong order which I promptly returned and by the time they found the order that applied to me and got it served, it was 34 days. The Horse Protection Act provided than an appeal must be filed from the Final Order within 30 days from the date the Final Order is signed. The Eighth Circuit Court has decided one case under this time requirement for filing an appeal. In this case (Kelly), the Final Order was served well within the 30 day period but Kelly sent his appeal to the wrong Court and by the time it got to the proper Court, it was one day late and was ruled beyond the 30 day limit.

Despite the admitted “blunder” by the USDA in not serving me within 30 days, they argued to the Court of Appeals that the Court should not take jurisdiction of my case that my appeal must be denied. The USDA asked the Sixth Circuit to give them what amounts to a pocket veto to deprive any appellant from exercising his constitutional right of due process under the U.S. Constitution and the statutory right of appeal under the Horse Protection Act instead of doing the honorable thing and dismissing this specious case by their own initiative. All the USDA has to do is put the Final Order in their pocket for 30 days before serving and thus, any appellant is denied his right of appeal. This position on jurisdiction by the USDA is the last straw for me. It undermines any moral authority that this agency might have had.

In summary, what we have here is a federal administrative agency that wants a strict and literal interpretation of the law on the matter of jurisdiction and, yet, wants the broadest latitude in devising a method for checking for sore horses - palpation - where the plain wording of the Horse Protection Act is that a horse must be found sore “while walking, trotting or otherwise moving.” Further the USDA cannot defend itself against a constitutional challenge to the very law under which it operates. Beyond this, the USDA has clearly stated its intention to administer the Horse Protection Act in the Sixth Circuit relying solely on palpation and, yet, cannot pursue this method in the Fifth Circuit. Truly a mess which appears to be clearly a denial of equal protection the law. In addition, the USDA is now attempting to impose a “scar” rule which is fundamentally flawed.

The walking horse community has always supported the Horse Protection Act and a reasonable administration of this law in practice. But, I am now convinced that the USDA has no further legitimacy in the administration of this law and the walking horse community should formulate a plan and strategy to negotiate them out of the business. The only remaining question in my mind is the tone of the strategy and tactics to get them out. We have the ammunition to play hard ball if we choose to do so, or we might simply let them declare a victory and go home.

Gandhi always said that he wanted English rule to end in India, and he wanted them to leave as friends, but, he said, they must leave.

The course of action outlined in this letter is in the best tradition of the American system of government. Throughout our history, we have defined and redefined the role of the federal government, the role of the states, the role of local governments and the role of private industry to meet changing conditions. It is the genius of the American system. In this spirit, the President has proposed a new Department of Homeland Security. Part of this proposal calls for the reassignment of a number of federal veterinarians to this department to combat terrorist threats from diseased animals, plants, etc. If we can devise a responsible system to regulate the walking horse community, we can free up the USDA to meet its new responsibilities and thus, we might be seen as patriots.

I am firmly convinced a better system can be devised to treat our horses and the people who care for them more humanely.

Very truly,
William J. Reinhart

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