Four months into litigation aimed at preventing horses from being legally slaughtered in the United States, animal law attorney Bruce A. Wagman is already citing Front Range Equine Rescue v. Vilsack as one of the “illustrative representations” of his experience.
Others might just call it a win. M. Christina Armijo, chief U.S. District Court judge for New Mexico, has already granted Wagman’s clients a temporary restraining order in the case. He wants a permanent injunction against USDA inspecting any horse-slaughter facilities in the U.S.
Wagman and Rocky N. Unruh, an expert in complex trials, are San Francisco attorneys from the national Schiff Hardin law firm, which has 400 attorneys based out of Chicago. Among the 15 plaintiffs Wagman and Unruh represent is one definitely large enough to pay their fees, the Humane Society of the United States.
With prestigious offices on L Street in Washington, D.C., and annual revenues that were approaching $200 million when last reported two years ago, HSUS is a nonprofit that can easily keep Wagman and Unruh in its legal stable.
In addition to more than two decades of experience litigating animal law cases, Wagman literally wrote the book on the subject. His “Animal Law: Cases and Materials” is in its fourth edition as a law school textbook.
Wagman’s job this time is to stop three small businesses located in rural areas of Iowa, Missouri, and New Mexico that saw an opportunity two years ago when the federal government’s ban on horse slaughter was lifted. All three went through an extensive process in requesting a so-called “grant of inspection” from USDA’s Food Safety and Inspection Service (FSIS).
Plaintiffs filed to block that from happening just as USDA decided to provide inspection services to the three businesses, Responsible Transportation in Iowa, Rains Natural Meats in Missouri, and Valley Meats in New Mexico. All three planned to pack horsemeat for export.
That’s when Wagman won the temporary restraining order. Department of Justice (DOJ) attorneys for the three named defendants in the case — Secretary of Agriculture Tom Vilsack, Under Secretary for Food Safety Elisabeth Hagen and FSIS Administrator Al Almanza — then suggested speeding up the case by skipping all preliminary arguments.
Wagman and Unruh agreed. For the past six weeks, there’s been a flurry of motions and arguments going back and forth. And while there has been no scheduled or target date announced for Armijo’s ruling on the merits of the case, Wagman seems to be winning the preliminary decisions.
For example, Armijo ruled against the government when USDA sought to have the Declaration of Dr. Daniel L. Engeljohn entered as a supplement to the administrative record. Engeljohn is arguably USDA’s top expert on horse slaughter and was the official directly in charge of the administrative process.
Also, the magistrate judge responsible for processing requests for injunction bonds denied the request of Rains Natural Meats. Valley Meats and Responsible Transportation, which were both included in the original injunction, did require bonds, but Rains was not because it came later.
However, since USDA was enjoined by additional court action from providing inspection services to Rains, that business faces similar jeopardy.
In addition to the plaintiffs represented by the Schiff Hardin attorneys, the State of New Mexico has intervened on their side of the case. Assistant Attorney General Ari Biernoff is representing New Mexico.
DOJ attorneys Alison D. Garner, Andrew A. Smith and Robert G. Dreher are representing USDA. Dreher is the Acting Assistant Attorney General of the U.S. for environment and natural resources.
The three business and numerous others have intervened on the government side. The most active attorney among several for those interests is A. Blair Dunn of Albuquerque.
Meanwhile, the law the Oklahoma Legislature passed last May to permit horse slaughter in that state takes effect on Friday, Nov. 1. Under the new law, any horse-slaughter facility would require approval from USDA, and officials say there are no applications in the works at this time.
Source: Food Safety News by Dan Flynn
Rep. C.W. “Bill” Young (R-FL-13), the longest serving Republican in the U.S. House of Representatives, passed away on October 18, 2013. His death was due to complications related to a chronic injury.
A member of the Congressional Animal Protection Caucus, Young was a great legislative ally for animals, including horses. In June 2013 he and Rep. Jim Moran introduced an amendment to the FY14 Ag Appropriations bill to defund Horse Slaughter inspections..
In 2014 he also Co-Sponsored the SAFE Act (H.R. 1094) to illegalize horse slaughter in the U.S. and the PAST Act (H.R. 1518) to protect horses from the cruelty of soring.
Young was the only Republican to sign & endorse Rep. Raul Grijalva’s letter to Interior Secretary Sally Jewell, calling for reforms of the Wild Horse Program.
In May 2013, Young was honored for his animal welfare leadership from the Humane Society of the United States. Upon accepting the award, Young said, “I am honored to receive this award and will continue to advocate for the protection of animals as I have throughout my career".
There will be a public funeral for Rep. Young on October 24th in Largo, Florida.
An agency within the U.S. Department of Agriculture (USDA) lacks discretion to deny requests to inspect horse slaughter facilities if they meet requirements under the Federal Meat Inspection Act, rendering an environmental review essentially meaningless, government lawyers argue.
Citing the failure of the Food Safety and Inspection Service (FSIS) to follow the National Environmental Policy Act (NEPA), animal welfare groups—including Front Range Equine Rescue, Horses for Life Foundation and Humane Society of the United States among others—have sued the agency in federal court.
The lawsuit has at least temporarily thwarted the plans of three facilities in Iowa, Missouri and New Mexico to slaughter horses for human consumption. The controversial practice has infuriated animal rights groups and divided Native American tribes.
In a brief filed last month, Justice Department lawyers argue NEPA doesn't apply to its horse slaughter oversight because FSIS lacks the authority to impose environmental conditions or deny a proposal for inspection on environmental grounds.
Since federal law requires FSIS to grant inspections to facilities that meet eligibility requirements under the Federal Meat Inspection Act, "environmental considerations pursuant to a NEPA analysis could not have changed FSIS' decision," the government lawyers wrote.
The animal rights groups that have sued FSIS vigorously disagree, and a federal judge is leaning in their favor. In temporary restraining orders that enjoin FSIS from dispatching inspectors to the horse slaughter facilities, Chief U.S. District Judge Christine Armijo has found plaintiffs are likely to prevail on their claims. The judge is expected to make her final decision—whether to grant a permanent injunction—by the end of October. A final ruling is likely to be challenged before the U.S. Court of Appeals for the 10th Circuit.
Plaintiffs have challenged FSIS's decisions to grant inspections and a directive that relates to a drug residue testing program for equines. FSIS Directive 6130.1 provides instructions to government personnel on how to inspect horses before and after they are slaughtered, including instructions for drug residue testing.
In the lawsuit, plaintiffs cite a number of environmental hazards associated with horse slaughter facilities before three plants closed six years ago.
"As described in the record, individuals in the vicinity of previous horse slaughter plants were forced to endure a noxious stench, dealt with blood in streams, and sometimes even found blood and horse tissue running through their water faucets," plaintiffs wrote in a brief.
"Whether this will happen again is precisely the question that should be explored in a properly prepared NEPA document."
NEPA typically requires federal agencies to assess the environmental consequences of a proposed action through an "environmental assessment" (EA) and/or a more comprehensive "environmental impact statement" (EIS). FSIS has
conducted neither an EA nor an EIS in connection with the horse slaughter facilities or the agency's drug residue testing program.
NEPA's requirements don't apply to a federal agency if a proposed action will not have a "significant" impact either individually or cumulatively on the human environment. Regulations excuse FSIS from preparing an EA or EIS unless the agency's administrator, Al Almanza, decides "an action may have a significant environmental effect," according to a memo from FSIS that granted federal meat inspection services to Roswell, N.M.-based Valley Meat Company, LLC.
FSIS's action "is purely ministerial" since it must grant federal inspection if a facility has met statutory and regulatory requirements, the agency concluded in the June 27 memo. "A grant of federal inspection likewise does not and will not allow FSIS to exercise sufficient control over the commercial horse slaughter activities at Valley Meat such that the grant will constitute a major federal action that triggers NEPA requirements," the memo declared.
The agency explained it only has authority to regulate a facility to the extent necessary to verify that meat produced for human consumption is properly labeled, packaged and wholesome.
Plaintiffs have expressed fears that the horse slaughter plants are potentially dangerous in part because drugs that are administered to horses are not safe for human consumption and have the potential to contaminate "local ecosystems and water and soil supplies."
Between 1996 and 2006, when FSIS tested horses for drugs before funding for horse inspections was withdrawn, few equines tested positive, according to the agency. But plaintiffs contend FSIS failed to test the animals for many drugs that are commonly administered to horses.
Documents submitted to the federal government have listed 115 drugs and categories of drugs that have been approved for use in horses and have been known to cause problems for humans, according to Bruce Wagman, an attorney representing a number of plaintiffs in the lawsuit.
The Attorney General of New Mexico has expressed similar fears, pointing out in a letter to Valley Meat that horse meat containing such dangerous substances as the anti-inflammatory drug phenylbutazone (PBZ) would be considered "adulterated" in violation of state law.
FSIS has defended the drug testing program, citing a number of safeguards—including random tests of horses after they are slaughtered—that are intended to protect the public from exposure to harmful chemicals and pesticide residues.
State agencies and the U.S. Food and Drug Administration (FDA) investigate companies whose meat has tested positive for unpermitted drug residues, and FDA has authority to prosecute a business and take other enforcement action, FSIS pointed out.
Although FSIS has acknowledged it will conduct fewer samples under its new program, the agency said it will analyze them for a larger number of chemical compounds. But plaintiffs gripe the new program "ignores several dozen other substances commonly given to horses that may be harmful to humans."
Source: Food Product Design by Josh Long
Help Make Horse Slaughter Illegal in the United States! Contact Congress in support of the SAFE Act. Passage of the SAFE Act will not only ensure that predatory horse slaughterers cannot reopen their doors here in the U.S.— it will also stop the trafficking of horses to slaughterhouses over American borders. Click Here to Take Action!