Monthly Status Report For July 2016 – USDA Begins Taking Down Lists

As indicated in my prior message, it will be our priority to keep the industry as informed as possible with regard to the legal proceedings currently underway.  Before getting into that, I wish to express my gratitude to those who have already joined the effort to support the industry in its quest for our show horse to continue its long standing history for future generations to come.  Your support is critical to the success of the industry moving forward.  Donations to the effort may be made through the FAST website at www.fastwalkingshowhorse.org.  Every contribution, however large or small, is most appreciated!

As you may have read, the USDA has released its rule making document and will open a 60-day comment period.  As reported earlier, attorney’s representing the industry in this matter met with the office of Management and Budget to discuss the matter in greater detail.  Attorney Joseph Wilson of Kelly Drye & Warren will be preparing an industry response to the rule making document.  I will keep you apprised of further developments in this case.

In June 2012, SHOW was a party to a lawsuit filed challenging the USDA’s new rules requiring HIOs to assess mandatory minimum suspension penalties against those people who entered horses that were disqualified based on DQP inspections. The USDA contended that the HIOs enforced the Horse Protection Act (HPA), and that the penalties assessed constituted determinations that the entrants violated federal law. The United States Court of Appeals for the Fifth Circuit rejected this contention, and ruled that the USDA’s regulations requiring HIOs to assess mandatory minimum suspensions were unauthorized and unlawful. Bottom line – HIOs do not enforce the HPA by assessing penalties against people, only the USDA is authorized to enforce the HPA, and then only by filing a formal complaint and following the due process procedures Congress prescribed in HPA §1825.

The law is established that the HPA means what it says:  No penalty shall be assessed for violation of the HPA except after notice by the Secretary, after an opportunity for a formal hearing and then only by written order of the Secretary. Nonetheless, the USDA continues to claim that entrants have violated the law using three unlawful protocols, processes and programs.

  1. The USDA determines that entrants have violated the Act using the IES Investigative and Enforcement Process, pursuant to which it decides entrants have violated the HPS and to assess penalties based on secretly filed cases where the uncontestable evidence is the VMO’s inspection report.
  2. The USDA also uses the Protocol for Foreign Substance Penalty to open secret cases in which it decides that entrants have violated the HPA foreign substance prohibition and assesses penalties based solely on a positive result from a swab sample tested by some unidentified lab.
  3. Finally, the Agency has treated the penalties assessed by HIOs under the HIO Penalty Program as establishing that those people who enter horses that are disqualified based on DQP inspections are people responsible for violations of the HPA.

Based on these processes, protocols and programs, the USDA has published on its website numerous lists identifying people it says violated the HPA and providing copies of the penalties or describing the purported violations and penalties. The lists falsely identify people as having been lawfully determined to have violated the HPA. These lists falsely mislead the public into believing the industry is rife with participants that the USDA has caught violating the law.

On June 8, 2015, the USDA was requested to remove these misleading lists from its website. At that time there was a searchable list on the USDA’s website identifying thousands of people who had been assessed an HIO penalty. This list was intended to be used by HIOs to identify those people under an HIO’s suspension so that the person would not be permitted to enter events and also to enhance suspension penalties based on prior HIO penalties. This list was rendered useless after the Fifth Circuit decision, and after we notified the USDA and registered our concerns about the lists, it was taken down.

There were also 15 additional USDA published lists of “violators” based on HIO penalty reports. Five lists, for the years 2010 through 2014, identified more than 2,000 people as “persons responsible for violations,” identifying the individual, the horse, the event, the HIO and the HIO penalty. There were five lists for 2010 through 2014 for those with HIO fines and five more lists inaccurately identifying those with current HIO suspensions.   On February 29, 2015, we sued to have these lists removed from the website. As of July 19, 2016, all 15 lists ceased to be available on the USDA website.

The USDA also published a 79-page searchable list that misleadingly identified about 2,400 people as “violators” and specified the “violation.” The list reflected the unlawful decisions about people having violated the HPA based on the IES Investigative and Enforcement Process and Protocol for Foreign Substance Penalty. Even though we had requested the list be taken down in June 2015, the day after we filed the lawsuit, the USDA changed the column for “violator” to “alleged violator” and the column for “violation” to “alleged violation.” We pointed out this change was also false and misleading, because there were no alleged violators or alleged violations.  In May 2016 this list was removed from the USDA’s website.

Finally, The USDA’s Enforcement Actions List falsely identifies more than 2,200 people as having been determined by the Agency to have violated the HPA again determined under the Protocol for Foreign Substance Penalty and IES Investigative Process from 2010 and into 2016. This list continues to be published and updated monthly.

The information on these many lists has misled the public and elected officials into believing that the almost 15,000 people, who never received notice of an alleged violation, never had a USDA complaint filed against them, never were afforded the opportunity for a formal hearing before the Secretary and have never had the Secretary determine they violated the Act, have violated federal law.

This should stop. The purpose of the pending lawsuit filed in the district Court in Fort Worth, Texas is to stop these abuses. The court has been requested to declare unlawful the USDA’s use of the IES Investigative and Enforcement Process, the Protocol for Foreign Substance Penalty and the HIO Penalty Program to determine a violation of the Act and to penalize people. The Court is being asked to declare that the USDA’s publications of the USDA’s Enforcement Actions Lists and HIO Penalty List are unauthorized and are an unlawful public reprimand. Finally, the Court is requested to enjoin the USDA from continuing these unlawful actions and practices.

The USDA’s response has been to challenge everything.  Nothing is conceded.  No documents have been produced. The Court has been informed that further dilatory motions are forthcoming and the case has been delayed so the Court will have time to decide the contested claims. This can be expected to continue in future proceedings, taking additional time and incurring additional expense.

We have achieved some of the results we sought in filing the lawsuit. Most of the website lists have been taken down, but the USDA continues to use the IES Investigative and Enforcement Process and Protocol on Foreign Substance Penalty to open cases against entrants and to decide, without notice or hearing, that they violated the HPA. The Agency continues to punish people with the issuance of a Form 7060, which it publishes on its website, identifying the “Violator” and “Violation.” Our goal in the lawsuit is to stop these actions and practices.  While it will take time and resources, achieving the goals will be worth the cost and effort to the industry as a whole.

In closing, I wish to again thank those who have made a contribution to FAST to support this important effort.  Your continued support will be paramount to the success of this effort.

 

Dr. Kasey C. Kesselring,
President FAST