SHOW and Contender Farms Dismiss Case Against USDA
Friday, February 24, 2017
On February 29, 2016, Contender Farms, L.L.P., the McGartlands, and SHOW, Inc. filed a lawsuit challenging the enforcement schemes utilized by USDA-APHIS. The complaint challenged the USDA’s use of three enforcement mechanisms not authorized under the HPA, and which directly contravene the requirement in §1825(b) that only the Secretary, after notice and hearing, can penalize a person for a violation. Plaintiffs challenged the USDA’s use of two unauthorized and unlawful administrative enforcement schemes: the “Protocol for Foreign Substance Penalty,” and the “IES Investigative and Enforcement Process,” under which the USDA wrongly decided that entrants, trainers and owners have violated the Act’s prohibition against entering sore horses.
The Plaintiffs also challenged the USDA’s use of private party information about private inspectors’ activities, which the USDA used to falsely identify people as having been determined to have violated the Act. Since none of these enforcement schemes were authorized by a Department regulation or by the HPA, this suit did not involve a challenge to any provision of the HPA or USDA regulation. The goal of the case was to obtain an order requiring the USDA to cease publishing numerous lists which falsely identified people as violators under the HPA, when a violation had not been lawfully determined.
Thousands of exhibitors have been wrongly identified as violators of the HPA without ever receiving notice and an opportunity to be heard before the Secretary, which is clearly required by the HPA. The plaintiffs in the suit had no problem with and did not challenge the publication of the identity of those parties who had this opportunity for hearing and either signed a consent decision or had their case adjudicated fully.
On February 3, 2017, USDA-APHIS voluntarily complied with the requests made in the complaint and removed the misleading information from its web site. As a result of this action by USDA, Contender Farms, the McGartlands and SHOW HIO have decided to dismiss the case without prejudice. The dismissal without prejudice gives the plaintiffs the right to refile the case should the USDA change course and republish the incorrect information.
“Given the fact that we have achieved the primary objectives in the lawsuit and we still retain our ability to refile the case should the information be made public again, SHOW felt it was best to dismiss the complaint. We commend the USDA for the removal of the information on their own accord, whether this case played a role in that decision or not. With the removal of the lists, the public now has an accurate record of the industry’s record of over 99% compliance with the HPA. SHOW feels it would be better served to utilize resources in other areas that can make a larger impact on the welfare of the horses as well as the industry as a whole. The Celebration and SHOW HIO are committed to the development of more objective, science-based inspection processes which can accurately detect violators and remove them from participation.”
“We remain committed to enforcing the HPA through the SHOW HIO while also protecting our customers, exhibitors and sponsors from unlawful practices that damage their reputations,” said Tennessee Walking Horse National Celebration board member Jeffrey Howard. The Celebration owns the SHOW HIO.