The Jurga Report: Horse Health Headlines

Wipeout: How the battle over the Big Lick Walking horses changed access to information on the welfare of all animals

By Fran Jurga | 2/9/2017

John Watson photo, via Flickr.com
Credit: John Watson photo, via Flickr.com
Walking horses are in the news again--or still. The US Department of Agriculture's removal of publicly-accessible violation and inspection notices related to the Horse Protection Act and Animal Welfare Act is creating furor in Washington and far beyond. 

 

Article by Fran Jurga, © Equus Magazine | AIM Equine Network

How many Tennessee Walker show horses are there in the United States? Not very many. And of all the Walking horses competing at shows, even fewer wear pad stacks and action devices. This most American of horse breeds was cultivated for its unique lateral gait, its most treasured characteristic. You don't see that many of them around.

But how they roar.

Enforcement of the Horse Protection Act, which was passed in 1970 to stop the abuse of these horses, has been nigh impossible all these years. The Act has been amended, the inspection procedures have changed, the courts have spoken, and still the show horse owners, trainers and fans of the breed are at an impasse with the government inspection system, in spite of both sides saying that they are dead-set against the practice of soring, or illegally using painful methods to enhance the horse's gait for show advantage.

Big Lick Walking horses are the tiny stub of a tail wagging the big dog of federal enforcement budgets. They operate in the shadow of mountains of papers and court judgments. 

American horselovers have little choice but to know these horses, even if they have never seen one in the flesh, since this tiny sector of show horses has been shaking up the equine industry for decades, This week a new chapter began and the breed's shake is being felt much deeper into the US Department of Agriculture. It is being felt by the USDA’s efforts to enforce federal Animal Welfare Act violations against all animals--from pets to circuses and all the way to laboratory research animals.

The lead-up

Last month, as officials in Washington were moving into and out of federal offices, a shock wave went through the horse industry when news came down that the executive action announced (and widely celebrated as a done deal) by the Obama administration in its final days had not been completed before the inauguration of President Trump.

The Horse Protection Act's golden coach of reform turned into a pumpkin right before our eyes.

And while President Trump probably has neither seen a Walking horse nor knows (yet) what the Horse Protection Act is or does, the Obama “Hail Mary” pass on Inauguration Eve would have made it just about impossible to show Big Lick horses, since the rule took away the hoof pads and ankle chains that the horses need for their action.

Instead, President Trump’s team at the White House wanted to clean up the hanging threads of all the Obama executive changes, and it declared a moratorium on their enactment. The Horse Protection Act was one of the casualties of a stomping foot on federal brake pedals.

But that was just the beginning.

Something's missing

Within two weeks of the inauguration, the USDA edited its website. It removed an entire section, the records of violations to the Horse Protection Act and, with it, records of all welfare violations and facility inspections related to animal welfare. USDA suggests that if you want the information formerly published there, you need to file a Freedom of Information Act (FOIA) request. The problem is that, in the time it takes to file and receive that information, animals lives may have been lost, or suffering prolonged.

You probably never even knew they were there. Their presence online was an act of transparency on the part of the federal government, partly attributable to a court order resulting from a lawsuit brought by the Humane Society of the United States. The problem was that the records posted there, as required by the suit judgment,  were potentially damaging to the people mentioned in the charges.

 

HSUS reaction

HSUS  wasted little time sending a letter to the US Department of Justice, charging USDA with being in violation of court orders--and threatening to sue all over again.

“Like every federal agency, the USDA operates thanks to the generosity of taxpayers, and it must be accountable to them,” HSUS wrote. “The USDA is changing the equation for the worse for animals and the public with this action.”

In response to the USDA action last week, a petition from HSUS was posted online with a goal of 95,000 signatures. As this article goes to press, it had collected 94,503 in under a week.

 

AVMA reaction

The fact that they were published at all has been lauded in a news release today by the American Veterinary Medical Association, which has opposed the soring abuse of Walking horses, but has a much larger stake in the matter with the removal of all animal records. “AVMA has utilized USDA-APHIS online records to obtain information and also to evaluate information shared with us by others related to the welfare of animals used in activities covered under these acts. As such, we are concerned that this information will no longer be as readily available to us,” the organization wrote. 

AVMA went on to acknowledge that enforcement of the HPA and AHA can possibly be in direct contradiction of the privacy laws designed to protect individual people.

“Achieving the intents of these laws means a balance must be struck among transparency, accuracy, and privacy when sharing information related to regulatory activity,” AVMA continued. “Furthermore, laws are subject to statutory interpretation, so final decisions are often reached as a result of long and complicated court proceedings. Thus, the AVMA appreciates the challenges that USDA-APHIS faces when determining how to best share the information that it collects in association with its enforcement of the AWA and HPA.”

One comment on the AVMA website suggested that animal welfare violations and inspection reports are akin to restaurant or food safety inspection reports, which are readily available to the public in their best interest. The AVMA is suggesting a sort of “fast track” FOIA process be instated for accessing the information.

 

USDA clarification

On Monday, the USDA published a slight clarification and rationale for its decision “…to remove documents it posts on APHIS’ website involving the Horse Protection Act (HPA) and the Animal Welfare Act (AWA) that contain personal information covered by the Privacy and Freedom of Information Acts or guidance from the U.S. Department of Justice regarding them. These documents include inspection reports, research facility annual reports, regulatory correspondence (such as official warnings), lists of regulated entities, and enforcement records (such as pre-litigation settlement agreements and administrative complaints) that have not received final adjudication.”

Keep in mind that the USDA is operating without a Secretary. Georgia's Sonny Perdue has been nominated for the position by President Trump but he has not been appreo

 

 

Walking horse lawsuit

What may have changed is that the new USDA leadership is acutely aware of a potential lawsuit by some Walking horse owners who are targeting the posting of the violations in court documents. The Washington Post revealed today that two Walking horse owners in Texas, Lee and Mike McGartland, are mounting the challenge.

The McGartlands have been charged with several violations of the Horse Protection Act in the past; these were posted on the USDA website, along with all the other violation notices. But the McGartlands claim that doing that violates the federal Privacy Act, designed to control the publication of personal information by federal agencies. 

Karin Brulliard of the Washington Post connected the dots. The lawsuit, filed in a federal district court in Fort Worth, Texas, in February 2015-----almost two years ago--asks the agency to remove the documents from its website. 

 

 

Obama administration status quo

The Obama administration never removed the documents, even though they certainly knew of the suit. In the Post article, former USDA Secretary Tom Vilsack acknowledged that the agency had been considering removal of the documents, but said that no decision to do so had been completed before he left the office. The new administration chose to pull them almost immediately, and without warning.

 

HSUS enters the courtroom

On Friday, HSUS issued a commentary that the USDA's transition team is being led by Brian Klippenstein, a man HSUS described as undertaking a "full time job is to thwart animal protection goals on behalf of Forrest Lucas’ 'Protect the Harvest'.” HSUS states that there is no court order requiring USDA to remove the records.

The objections of HSUS to USDA actions culminated in direct legal action to intervene in the court case against USDA "to prevent the horse soring proponents and the USDA transition team from cutting any sweetheart deals behind closed doors."


A surprise interception

A previous article by this author described the final-days filing by the Obama USDA as a “Hail Mary” pass. In football, such a pass is thrown, along with a prayer, in the final seconds of a game by the losing team. The quarterback is doing the only thing he can, and just hopes the receiver is in the end zone to catch it.

In keeping with the football metaphors, here’s another one. Someone is running interference on behalf of the AHA and HPA documents.

Or, you could say, she’s pulled off a grand interception and galloped over the goal line.

Former law professor Delcianna J. Winders, now Academic Fellow at Harvard Law School’s Animal Law & Policy Program, simply downloaded the entire archive of documents from a cached version of the USDA website (or used an Internet tool like the Wayback Machine). 

She reposted them as a mirror set of documents on the nonprofit websites, archive.org. There they are, plain as day. If you know what you’re looking for, you are likely to be able to find it there.

Not surprisingly, Winders announced her covert action on Twitter.

Perhaps the game isn’t over, quite yet.

• • • • • 

To learn more: 

Hail Mary: USDA proceeds with last-ditch effort to end soring by imposing bans on Walking horse pads, action devices

USDA's new Horse Protection Act rules withdrawn from federal enactment

HSUS article and response to the scrubbing of USDA’s website

Delcianna Winders’ archive of USDA AHA and HPA documents

HSUS letter of complaint to Department of Justice (PDF download)

Washington Post: "USDA removed animal welfare reports from its site. A show horse lawsuit may be why" by Karin Brulliard

HSUS petition to protest USDA removal of documents

AVMA response to USDA-APHIS action on release of animal welfare data

Jumping Foal
by Fran Jurga
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