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Documents

Swartz Update: An Inside Look at the Secret Service and FOIA

A quick update on the Aaron Swartz FOIA request.

There have been several court filings related to Wired magazine Poulson’s FOIA case, regarding the investigative material for the court case against Aaron Swartz. Poulson walks the talk on transparency, and provides links to all of the documents. I’m also preparing a docket sheet with links to the court documents. (Duplication aids transparency.)

One of the documents is a status report (PDF) filed by the Secret Service. In it, we see the state of FOIA requests within this agency. It gives us a good idea of how overwhelmed government agencies are with FOIA requests—especially after Sequestor cuts. The problem of overwhelmed FOIA resources is compounded by the fact that non-profits and other organizations will sue an agency if a FOIA request isn’t met within the 20 days.

The Poulson court case is different, in that he was denied access to the documents, and the agency didn’t respond to the appeal. But I know of several lawsuits filed by organizations just because the agency (typically the EPA) hasn’t responded in 20 days.

We have to remember that transparency comes with a cost. I’m not saying the results aren’t worth the costs, but we can’t pretend that all of this open goodness doesn’t come without a price tag.

From the document:

The United States Secret Service (“Secret Service”) employs less than 1,800 nonoperational personnel service in administrative positions. The Freedom of Information and Privacy Acts (“FOI/PA”) Office of the Secret Service, when fully staffed, recently had eleven (11) personnel who are assigned to redact and process FOIA requests, including reviewing documents to determine what, if any, information should be withheld under the FOIA. Due to government-wide budgetary reductions, the Secret Service FOI/PA Office was forced to cut two staff positions which has left the FOI/PA Office with only nine personnel that are assigned to redact and process FOIA requests.

The Secret Service is currently processing three other voluminous FOIA requests which require the full-time, exclusive attention of two of the agency’s nine FOIA processors [emph. added] In the case of one of these two requests, the FOIA processor has been working on it, full-time, for two years. This leaves seven FOIA processors to complete the remaining FOIA requests which come to the office.

In fiscal year 2012, the Secret Service FOIA/PA Office received approximately 1,595 FOIA requests. To date, for fiscal year 2013, the Secret Service FOI/PA Office received approximately 1,138 FOIA requests. The Secret Service FOI/PA Office, in one week, from July 15 – 19, 2013, received 234 additional FOIA requests. To date, the Secret Service FOI/PA Office has 1,001 pending FOIA requests.

One FOIA request that requires a full time employee for two years. Time to dig around and see which FOIA request this is.

Categories
Documents Legal, Laws, and Regs

Initial Complaints from the Cantaloupe Listeria Outbreak Court cases courtesy Marler Clark

Bill Marler, of Marler Clark, has posted links to court complaints the law firm has filed because of the Cantaloupe Listeria outbreak in 2011. This was one of the most significant food illness outbreaks of modern times.

I could wish more law firms would post their legal filings, especially those at the state level that are difficult to access outside the state. Yes, most of the documents are legalese, but many court filings are plain, factual descriptions of events of importance—without embellishment and opinion. Many court documents reflect historically important decisions that can have a significant impact on our society.

Court documents can also contain subtle humor, eloquence, as well as brilliant examples of wit and logic.

Categories
Critters

Horses on the Range…and in the oven

Update

The Judge has issued a temporary restraining order, preventing the plants from starting, until the case is more fully argued in court. The parties will meet again in court next week.

I’ll have a follow up writing next week, on both the case and the underlying issue, as well as an updated court docket with new filings.

Earlier:

The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality.

5th Circuit Court of Appeals decision in The Humane Society of the United States vs. Johanns, Judge Fortunata Benavides

This Friday, August 2nd, at 9 in the morning, Judge M. Christina Armijo will convene court in an Albuquerque, New Mexico federal district court. Among those in attendance will be representatives from several parties, including Front Range Equine Rescue and the Humane Society of the United States, Robert Redford, former New Mexico governor, Bill Richardson, New Mexico state, multiple Native American tribes (including the Confederated Tribes of Yakama), meatpacking companies, and various private citizens. The outcome of the meeting determines whether, come this Monday, August 5th, horses will again be slaughtered in meat packing companies in the United States for the first time in over six years.

The hearing will be short, probably only a few hours. How we got to this court hearing, is a long story.

The Reality of the Horse Meat Industry

In the early morning hours in September 27, 2006, a tractor/trailer hauling 41 horses and one hinny overturned on Interstate 44, not far from my home in St. Louis, Missouri. The animals were on their way to a horse processing plant in DeKalb, Illinois. Sixteen of the horses didn’t survive the crash, but the Humane Society of Missouri was able to save 25, as well as the hinny.

The wreck was a big story, covered in both local and national news. From the coverage and online discussion, many of us discovered some things we didn’t know about the horse slaughter business.

For instance, we’ve always been told that horses sent to slaughter are old or sick. Yet most of the horses in this truck were young, healthy horses. One was even pregnant, and had her colt a few months later. Another horse was only four years old, and robustly healthy.

Horses intended for slaughter aren’t gently led off, one by one, to a quick and painless end, either. No, they’re crammed into long-haul trailers, where they’ll spend the next day or two, typically without any any food or water, smashed up against other horses—horses who may or may not kick and bite other horses because of the stress. Once the horses reach the plant, which has been primarily designed for processing cows, they’ll be chased through narrow chutes, isolated, and if they’re lucky, killed immediately with a bolt gun shot into the head. Only if they’re lucky, though. Bolt guns are designed for cattle, and don’t work as effectively on horses. If the first shot doesn’t kill them, the poorly trained worker will try again, and perhaps again, until maybe having to give up and grab a gun and shoot them with a bullet.

Seems a heck of a poor ending for any animal, much less one that’s participated in races or other sporting events, pulled carts, been ridden, and supposedly been loved, as Americans profess to love our horses.

At least the domesticated horses in this truck wreck were used to people. After all, they are a companion animal, for what that’s worth in a land where “companion” is sometimes synonymous with “commodity”. What about the wild ones, though? How much more stressful is the process for them?

Some folk want to “control” wild horse herd sizes by rounding them up and sending them off to a plant to be butchered. Horses that have had little or no human contact, are chased by helicopter and car and mounted rider, herded into pens surrounded by people and lights and noise, only to be auctioned off to a “kill” buyer. The horse then is crammed into truck with 40-50 other horses, driven up to 30 hours without food or water or fresh air, before being unloaded at a place that stinks of death. At the end, they get to experience the long rush down a narrow chute to the dubious ministrations of under-trained low-paid workers with a stun bolt gun.

From open range to oven, in a matter of a few weeks.

The End of Horse Meat Plants…sort of

Incidents like the truck overturn in Missouri only added to the disquiet people in the US experience at the thought of one of our favorite animals, being dragged off to be butchered.

Eating horse meat is taboo in this country; popular opinion has never wavered when it comes to our dislike of horse meat plants. State laws were passed that made it illegal to sell horse meat or process horses, commercially, for meat. In the 1990s, there were 15 horse meat plants in the country. By the time the tractor-trailer overturned on I-44, there were only three—two in Texas, one in Illinois.

The two horse meat plants in Texas were successfully closed down when the 5th Circuit Court of Appeals decided to support a Texas law banning the processing and possession of horse meat. The DeKalb, Illinois plant closed when Illinois passed a law banning commercial horse meat processing.

Potential plants in other states were denied permits because of Congressional defunding of USDA inspections for horse meat plants. Don’t have USDA inspectors, you can’t ship meat for human consumption in the US.

Of course, the plants tried an end run around the law. They approached the USDA about funding inspectors, directly. The USDA was willing, the people less so. I’ll cover how this effort ended towards the end of this story.

In 2007, the horse meat industry was effectively finished in the US. Finished, that is, until a dubious bit of backroom maneuvering in Congress.

Congress, Ah Congress

In 2011, an agricultural appropriate bill was in the works in Congress. Previous versions of the bill had contained language excluding horse meat inspection funding for the USDA, but the one that passed through the conference committee this time no longer had the language.

Conference Committee Chair Sen. Herb Kohl (D-WI), Rep. Jack Kingston (R-GA), and Sen. Roy Blunt (R-MO) voted to reject de-funding of inspections for equines for slaughter for human consumption. Only Rep. Sam Farr (D-CA) voted to support continued de-funding of the inspections.

If the name of Roy Blunt sounds familiar, it’s most likely because you’ve read that Senator Blunt is also the man responsible for secretly inserting an amendment, known popularly as the Monsanto Protection Act, into an essential appropriations bill. Blunt has shown himself to be an expert at manipulation of the Congressional processes.

What was surprising about the passage of a bill that effectively funded horse slaughter in the US again, is how little the change was discussed in the media. Vickery Eckhoff noted the same in a scathing writing for Forbes:

The press had ten days to research all that, yet somehow managed to tell only the pro-slaughter story. Why did they marginalize both the issues and concerns of a majority of Americans? Because they—the 70% against horse slaughter—don’t have lobbyists who speak for them through the media. That’s what their senators and representatives are supposed to be doing.

As justification for beginning the horse meat industry again, despite overwhelming bipartisan disapproval, Congressional reps and horse meat industry proponents pointed to a report from the GAO (Government Accountability Office), commissioned to discover the consequences of disallowing horse slaughter houses. The fact that it would be viewed as favorable to the horse meat industry was noted when the contents were leaked to former Congressional representative turned meat industry lobbyist, Charlie Stenholm. At a conference named “Summit of the Horse”, in Los Vegas, in January, 2011, Stenholm noted the GAO contents to conference attendees:

Charlie Stenholm began the day with a speech that laid out an aggressive lobbying strategy. He acknowledged that “It’s not easy to be a spokesperson” for the horse slaughter industry, but nevertheless, optimistically predicted that the barriers to opening U.S. slaughter plants will be removed by the new Congress. Stenholm highlighted that the GAO report on the effects of the closure of U.S. horse slaughter plants on horse welfare, due out soon, will play an important role in the Congress’ decision on this issue, noting that it was likely that the report will result in a call for hearings. He urged conference participants to testify at the hearing to carry the message that there are too many horses and commercial slaughter must resume in the United States.

The American Horse Council highlighted a portion in its summation of the report:

In light of the unintended consequences, the report suggests that Congress may wish to reconsider the annual restrictions on USDA’s use of appropriated funds to inspect horses being transported to slaughter facilities to allow USDA to better ensure horse welfare and identify violations of the Commercial Transportation of Equines to Slaughter regulations.

However, that’s not exactly what the report states. Not completely. What the reports states (from the Highlights docment) is:

GAO suggests that Congress may wish to reconsider restrictions on the use of federal funds to inspect horses for slaughter or, instead, consider a permanent ban on horse slaughter. [emphasis added]

There’s been considerable criticism of the report from animal welfare folks, not the least is the fact that some assertions in the report don’t make sense.

According to the report, the same number of horses are still being slaughtered, but they’re being sent to Canada or Mexico for slaughtering. If the same number of horses are being processed for meat, why then is there an assumption that starting up meat slaughter houses in the States will somehow improve the situation? The report also implies that discontinuing slaughtering in the United States has led to an increase in abandoned and/or neglected horses. However, and oddly, it completely fails to take into account the severe economic collapse as well as significant droughts the country has sustained in that time.

The Animal Law Coalition and Equine Welfare Alliance recently released a white paper and YouTube video claiming fraud in the GAO report. However, reading the GAO report, I don’t see evidence of fraud. What I do see is a complete lack of evidence to support any claim about abuse and neglect of horses as related to the horse slaughter industry.

Comprehensive, national data are lacking, but state, local government, and animal welfare organizations report a rise in investigations for horse neglect and more abandoned horses since 2007. For example, Colorado data showed that investigations for horse neglect and abuse increased more than 60 percent from 975 in 2005 to 1,588 in 2009. Also, California, Texas, and Florida reported more horses abandoned on private or state land since 2007. These changes have strained resources, according to state data and officials that GAO interviewed. State, local, tribal, and horse industry officials generally attributed these increases in neglect and abandonments to cessation of domestic slaughter and the economic downturn. Others, including representatives from some animal welfare organizations, questioned the relevance of cessation of slaughter to these problems.

The GAO pulled much of its data from interviews with state veterinarians, but only interviewed veterinarians from 17 states, and many times, the veterinarians were accompanied by representatives of the livestock industry when interviewed. The GAO also acknowledged that the economic downturn accounted for a percentage of loss of value for all horses, but claimed a higher loss for lower-value horses generally meant for horse meat plants. However, the GAO report isn’t comprehensive enough to equate loss of value directly to plant closings.

Rather than fraud, I believe the report suffered from lack of data, as well as limited time and resources in order to do a more thorough job. As it is, if the report timeframe had extended to 2013, it might have found even less of a demand for US horses from Canada and Mexico, but this lack of demand has nothing to do with horse meat plant closures, and everything to do with increased awareness of food safety issues related to horse meat.

Want a little bute with that horse steak?

Before they closed, the last three horse meat plants in the US had one thing in common: they were all owned by European companies. Though horse meat is consumed in several countries, European countries are primary recipients of American horse meat. As such, the European Union has a powerful influence over the horse meat trade.

Horses are considered companion animals for the most part. As such, they’re given drugs that are typically denied to food animals, such as cattle and hogs. In the last several years, a great deal of concern has been raised about the impact of these drugs on humans who consume the horse meat. One drug, phenylbutazone (PBZ), otherwise known as bute, is known to cause significant health problems for humans who consume it via the meat they eat. Because of the serious consequences of the drug in the food supply, any residue of the drug is forbidden.

The presence of bute in American horse meat was so prevalent at one point, though, that the EU instructed the Canadian horse meat industry to clean up its act by 2013. It sent auditors to both Canada and Mexico to examine the horse meat industries in both countries and the steps the industries are taking to ensure a clean meat supply. The EU also implemented a passport system to ensure clean meat. All horses are given a microchip or freeze brand and passport by six months of age, or when imported. Any time a medication is given to the horse, the information is entered into the passport. Supposedly, with this system in place, there’s no chance that drug tainted horse meat can enter the food chain.

It’s a good idea, but has a major point of failure: the United States of America.

Most of the horse meat exported from Canada and Mexico to Europe comes from US horses. If we start up the horse slaughter business here in the States, then all we’ll have done is shorten the food chain one link.

We have no passport system. We routinely and happily pump any number of drugs into our animals, whether they’re intended for the plate or not. There is no procedure in place, in the past or currently, that allows us to discover whether that horse steak on its way to France is from a Navajo wild horse or a non-winner from the tracks. Oh, we can test the meat for drug residue, but the number of foodborne illness outbreaks arising from adulterated meat in this country should conclusively demonstrate that our meat testing procedures are based more on probability and luck, than comprehensiveness. There’s certainly no way of determining, without a doubt, if the horse has been given a drug such as bute—not without thorough testing. And it’s not economically feasible to test every horse for every possible drug application.

We can’t even ensure exactly what meat we’re eating, much less whether it’s adulterated meat.

The food industries in the UK and EU were rattled earlier this year when traces of horse meat were found in foods supposedly only containing beef. Fast food chains, supermarkets, and even the venerable IKEA were caught up in the scandal. Want a little horse with that meatball?

Horse meat in food in the United States hasn’t been an issue because we don’t have any horse slaughter facilities in the United States. We import grass-fed beef to increase the leanness in our ground meat, but not horse meat. This state is likely to change, though, if we do start up horse meat plants. If we can’t track which horses are sent to a horse meat plant, we certainly can’t track with a 100% accuracy, where the meat goes once it leaves the plant.

We’re back to probabilities, and luck.

So, where are we now?

When Congress removed the language prohibiting funding for USDA inspections of horse meat plants, the USDA began the process of preparing to implement horse meat inspections once again. Impatient at the delays in the process, one of the plants interested in processing horse meat, Valley Meats in Roswell, New Mexico, sued the USDA to force it to give the company a permit (complaint). The company also sued HSUS and Front Range Equine Rescue for defamation, but quickly moved to dismiss this case.

In June, the USDA gave Valley Meat a permit, and moved to dismiss the case against it. In July, it gave a permit to Responsible Transportation in Iowa. Permit requests are pending for plants in at least four other locations.

Other than getting laws passed to defund horse meat inspections again, or to ban horse meat plants altogether (both of which are rattling about our House and Senate), there’s little animal welfare organizations and concerned citizens can do to directly stop the horse meat industry. However, the animal welfare groups did have one ace up their sleeve: the National Environmental Policy Act, or NEPA.

The NEPA requires that government agencies, such as the USDA, consider the environmental impact of any programs, procedures, rules, and regulations. To meet this requirement the agency will perform either an environmental assessment or review. The agency then has to publish the work for public review and comment. The USDA did not perform any environmental review of the impact of horse meat processing plants. Considering the environmental damage related to horse plants we have had in the past, the lack of review does seem to be an egregious omission.

There is no citizen suit capability with the NEPA, where an average citizen can sue the government, directly, based on some action (or inaction), but citizens do have the ability to bring about a judicial action via the Administrative Procedure Act (APA).

On July 2nd, Front Range Equine Rescue, the Humane Society of the United States, the Marin Humane Society, Horses for Life Foundation, Return to Freedom, and various individuals brought suit in federal court against the USDA, for violations of both NEPA and the APA:

Plaintiffs are filing this action because Defendants are proceeding with the inspection of horses under the Federal Meat Inspection Act without compliance with their federally mandated environmental review obligations.

The case was initially filed in California, but has since been moved to a federal court in New Mexico. In addition, several new plaintiffs have joined the lawsuit, including former New Mexico governor Bill Richardson, and the actor Robert Redford. The state of New Mexico has also asked to be allowed to intervene, coming in on the side of the plaintiffs. The horse meat packing companies have asked to intervene, fighting for dismissal of the lawsuit.

An interesting twist to the case is that the Confederated Tribes of the Yakama Nation have asked to intervene with the horse meat packing companies, while several members from other tribes have directly joined with the plaintiffs. Just recently, the Navajo people have signaled their support for the horse meat industry, though the tribe is not intervening in the lawsuit. I’ll have a more in-depth examination of the Native American involvement in this issue in a follow-up writing.

The plaintiffs have filed a motion for a temporary restraining order and preliminary injunction, prohibiting the plants from starting. The USDA has filed a motion denying that the plaintiffs have cause to bring about the suit, or if the judge allows the case to continue, to join it to the case previously filed by Valley Meat. Friday morning, August 2, at 9AM, representatives from both sides will meet with Judge M. Christina Armijo. Judge Armijo will then make a decision on the restraining order and preliminary injunction. If the Judge rules for the USDA, Valley Meat has promised to begin slaughtering horses August 5th. This despite a fire at the plant this week, which the owner claims was arson, but is still undergoing investigation. (The Iowa plant, Responsible Transportation, has also stated it will start on Monday, if the Judge rules against the plaintiffs.)

The animal welfare groups and individuals do have precedence working for them in the lawsuit. In 2006, when the funding for horse meat inspectors was withdrawn from the USDA, the agency agreed to provide inspectors if the meat plants provided funds for the inspectors. The Humane Society of the US filed suit against the USDA, in The Humane Society of the United States vs. Johanns, relying on both NEPA and APA. The courts agreed with HSUS, finding that the USDA’s new rule to be in violation of the APA and NEPA. The Court moved to vacate the rule, permanently enjoining the USDA from providing inspectors, and closing down the horse meat industry for good.

Well, until three Congressional representatives struck a few words from an appropriation bill.