Posted June 2, 2002

The United States District Court for the District of Columbia has denied a motion by the AHPA to Supplement the Administrative Record and request to file a Supplemental Memorandum. The ruling by the District Court was issued May 6th and was signed by United States District Judge Henry H. Kennedy Jr.

This ruling represents a victory for the United States Department of Agriculture and the Show Horse Support Fund in their opposition to a lawsuit filed against the USDA by the AHPA. This motion was an attempt by the AHPA to add the 2000 Horse Protection Report to the Administrative Record, which is being considered by the Court in this lawsuit.

The American Horse Protection Association (AHPA) originally filed suit on January 8, 2001, in the US District Court for the District of Columbia to prevent the USDA from implementing the 2001-2003 operating plan. The basis of the suit is the AHPA’s belief that the Horse Protection Act does not permit the USDA to delegate its authority for enforcement of the act to HIOs or to any “private parties.”

According to the AHPA, the suit charges that the Horse Protection Act does not give “private parties,” (for example, HIOs) the authority to enforce the act or to impose penalties on people alleged to have violated the act. AHPA believes that such authority belongs only to the Secretary of Agriculture or the Attorney General in the case of criminal prosecutions. AHPA further states that nothing in the HPA authorizes the Secretary of Agriculture to delegate the enforcement to HIOs.

On Jan. 10 the D.C. District Court heard a motion from the AHPA for a temporary restraining order. 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 was pending. The request was denied.

On Jan. 24, 2001, the Show Horse Support Fund voted unanimously to join in the support of the USDA in the suit filed against the USDA by the AHPA. The SHSF authorized Tom Blankenship to contact attorney John Harmon and attempt to intervene in the lawsuit.

Two briefs were filed regarding the American Horse Protection Association suit against the USDA during the first week of February. On Feb. 5 the Show Horse Support Fun filed its Motion for Leave to Intervene in the case. On behalf of the USDA, the Department of Justice filed a Motion to Dismiss for Summary Judgment on Feb. 7.

The Show Horse Support Fund filed their motion to intervene on Feb. 5, 2001. To be allowed to intervene, the fund must show “(i) an interest in the transaction, (ii) which the applicant may be impeded in protection of the action, (iii) that is not adequately represented by others.”

The fund argued that it should be allowed to stand with the USDA in the suit because those represented by the SHSF would be economically affected if the court finds for the AHPA. The brief states, “Plaintiff [AHPA] seeks to change the Department’s enforcement approach and to compel the Department to adopt more confrontational enforcement policies that would disrupt the show horse industry and increase the economic burdens upon participants represented by the Fund without improving detection and disqualification of sore horses.”

To demonstrate that its interests are not adequately represented by others in the case, the brief points out that the USDA would not suffer the economic consequences that horse show participants would suffer if the AHPA won the suit. It also states, “...with respect to conflicts between DQPs and Department personnel, the views and interests represented by the Fund are not aligned with those of the Department.”

On Feb. 7, 2001, the Department of Justice filed a “Motion to Dismiss or, in the Alternative, for Summary Judgment” on behalf of the USDA.

The USDA’s motion to dismiss asserts that “Congress specifically provided for participation by the show managers in enforcing the provisions of the [Horse Protection] Act. Consequently, the issue in this case is not whether USDA has discretion...to delegate enforcement authority..., but rather whether USDA’s determination of how to enforce the salute...is subject to judicial review...”

The USDA states that review of the 2001-2003 operating plan is governed by a two-step analysis set forth in previous cases: step 1) whether or not Congress spoke directly to the question at issue (in this case, whether or not the USDA could delegate enforcement authority); and step 2) if Congress did not directly address the specific issue, then the Court “must defer to the agency’s (in this case, the USDA’s) interpretation so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute’s plain language.”

The USDA holds that Congress did directly address the issue, as stated above, and that the case should be dismissed.

The brief points out that it is impossible for its veterinary medical officers to attend more than a small percentage of horse shows each season. Therefore, if enforcement were left entirely to the USDA, the number of HPA violations detected and punished would decrease significantly, which would be the opposite of the law’s intent.

The USDA also argued that the AHPA does not have standing to bring the suit. Standing is the right to initiate a legal action. According to the motion, “an organization may have standing to sue either 1) on its own behalf, or 2) on behalf of its members asserting their individual rights.”

To establish standing, an organization has to prove that it or its members have suffered, or will soon suffer, an injury that is a result of the defendant’s actions. The injury cannot be “conjectural or hypothetical.” USDA points out that in National Taxpayers’ Union v. United States, the court stated that the claim of the taxpayers’ union that the U.S. had “frustrated” its organization's goals was insufficient to grant standing.

In short, if the AHPA believes that implementation of the operating plan would conflict with their goal of horse protection, that belief alone is insufficient for the court to grant standing.

The American Horse Protection Association filed a memorandum with the U.S. District Court in Washington on Feb. 9, 2001, in opposition to the Show Horse Support Fund’s motion for leave to intervene.

In its opposition brief the AHPA states that the SHSF does not satisfy the four requirements necessary for an intervention. The requirements are: 1) the application must be timely; 2) the applicant must demonstrate a legally protected interest in the action; 3) the action must threaten to impair that interest; and 4) no party in the action can adequately represent the applicant’s interest.

Among its reasons for opposing the intervention, AHPA states that SHSF failed to show how the suit will disrupt the horse show industry, but rather merely assumes that the harm will occur. According to the AHPA brief, the SHSF claim that a decision in favor of AHPA would harm the walking horse industry “is at best speculative and ‘unduly remote.’ “

Regarding whether or not the USDA will adequately represent the interests of the walking horse industry, the AHPA brief holds that the secretary of agriculture and the SHSF “have identical positions in this case.” AHPA states that the USDA and the SHSF “have the same goal; to have the Court find that the 2001-2003 Horse Protection Operating Plan does not embody an unlawful delegation of Agriculture’s enforcement authority. Nothing that the Fund has identified suggests that the Secretary [of agriculture] cannot or will not adequately represent the interests of Fund members in this litigation.”

On Feb. 16 U.S. District Court judge Henry H. Kennedy referred the SHSF motion to intervene to a U.S. magistrate judge, which is a lower court.

In May 2001 the court ruled that the Show Horse Support Fund (SHSF) does not have the right to enter the lawsuit and granted the SHSF’s motion to intervene.

According to SHSF Attorney Tom Blankenship, “it is extremely important that the court ruled the SHSF had the right to intervene as a matter of right.” By granting that right, the court recognizes SHSF’s legal responsibility to be a part of the suit.

“This is important because the SHSF is representing interests that are particular to the show horse industry that other groups (like the USDA) cannot adequately represent, “ said Blankenship.

As it relates to the overall lawsuit, Blankenship explained that the court could not rule on the merits of the case until the issue of SHSF’s involvement was resolved.

The Show Horse Support Fund is an organization established in 1993 to protect and preserve the showing of the Tennessee Walking Horse. The organization was formed as the successor to the Friends of the Show Horse, which successfully intervened in the 1988 litigation brought by the AHPA. The fund ultimately prevailed in that litigation. The friends were then joined by the Tennessee Walking Horse National Celebration, the Walking Horse Trainers Association, and the Tennessee Walking Horse Breeders’ and Exhibitors’ Association, and the Show Horse Support Fund was established.

On Feb. 28, 2001, the USDA filed its reply to the American Horse Protection Association’s memorandum, which opposed the USDA’s motion to dismiss and for summary judgment.

In its latest memorandum the USDA attempts to show that its interpretation of the Horse Protection Act and Regulations is accurate and that AHPA’s is not. In addition to the language of the law, one of the critical components of the case is the intent of Congress when it passed the law.

AHPA argues that Congress clearly intended that enforcement of the HPA be made stronger when it passed the 1978 regulations that strengthen the original act, but that USDA’s use of HIOs and DQPs weakens enforcement. The USDA, however, argues that” “Plaintiff’s selective and distorted version of the statute [HPA] and Operating Plan are insufficient to demonstrate that the agency’s [USDA’s’ action is inconsistent with the plain language and intent of Congress.” the USDA memorandum also states: “(AHPA) presents an interpretation of the Horse Protection Act that is unrelated to the actual language and intent of the statute as a whole...”.

According to its previously filed briefs in the case, AHPA believes that the HPA gave show management the ability to hire designated qualified persons for the sole purpose of inspecting and disqualifying horses from showing or being presented for sale or at auction. AHPA insists that only the Secretary of Agriculture can enforce the law through punitive measures.

However, the USDA states that AHPA has ignored a key phrase in the statute and cites the following language from it: “...or to otherwise inspect horses for the purpose of enforcing this Act.” USDA believes that the words “for the purpose of enforcing this Act” is in fact a Congressional mandate, expressed in plain language.

Regarding AHPA’s contention that the USDA has abdicated its enforcement authority, USDA insists that is has “expressly retained its authority.” The agency points out that it initiated numerous enforcement penalty proceedings between 1999 and 2000. It refers to an HIO’s role as that of “initial enforcement” and states that it does not eliminate the USDA’s ability to enforce as well.

USDA admits that while the operating plan is “an imperfect solution to the problem of eliminating a cruel and inhumane practice,” it is not “arbitrary and capricious” as the AHPA has argued.

The department states: “Given the compromise struck by Congress in the statute, together with the limited funds Congress appropriates each year to the horse protection enforcement program, the agency cannot be faulted for attempting to increase the number of violations detected and punished under the Act. Plaintiff’s real issue is with Congress, not with the agency charged with enforcing a flawed statute.” the USDA admits that it cannot afford to send veterinary medical officers to roughly 90 percent of horse shows and that without DQPs many violations would go undetected.

The Court has still not ruled on the original suit filed by the AHPA against the Department even though almost a year and a half has passed and the case is on the “fast track”.