Today, Judge Armijo will hold a status conference with all the lawyers in the Front Range Equine Rescue et al v. Vilsack et al court case.
The USDA and defendant interveners have asked for an expedited hearing on the merits of the case, rather than go through the preliminary injunction process. The plaintiffs have agreed, but have also asked the Judge to modify her Temporary Restraining Order (TRO) so that it’s impacting on the USDA only, and not the two meat processing plants who have been given a horse slaughter inspection permit. The groups have also asked for a bond reduction, as the bond amount is excessive for a NEPA action.
Several in the horse welfare movement are up in arms about the government’s request—thinking that the government is trying to ram through a court decision. That’s not happening, and I’m concerned there’s a hostility towards the USDA that isn’t warranted. At least not in this case. I think much of this hostility is due to the fact that there’s as much rumor as fact surrounding the case. I’m not a lawyer, but I have been following other, similar court cases, so I’m going to take a shot at laying out the facts in the case. If I make a mistake in my understanding, please let me know.
The plaintiffs based the lawsuit on the Administrative Procedures Act (APA) and the National Environmental Policy Act (NEPA). Basically, what’s happened is the USDA has made a decision to begin inspections at horse slaughter facilities. The plaintiffs assert this agency decision causes them harm. They have exhausted all other efforts to seek redress for this harm, and seek a remedy in court. According to the amended complaint, “The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
What is the legal wrong? That’s where NEPA comes in. The legal wrong is that the USDA did not perform an environmental analysis of the possible negative consequences of its decision to issue horse slaughter inspections; did not provide a statement of such an analysis; and did not provide opportunity for the public to comment on the potentially negative consequences of the agency’s action. Returning to the amended complaint, “Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.”
Considering the negative environmental consequences of horse slaughter plants in the past, the plaintiffs should be able to establish standing. To sue, the plaintiffs have to establish that they have a stake in the outcome of the court case, that they have suffered a legal injury by action of the defendant, and that the court can redress this injury. Among the plaintiffs are people who live in the immediate vicinity of these plants, and who can, and most likely will, be impacted by the operation of these plants. These people are members of the Humane Society of the United States (HSUS), who is participating in the suit on their behalf.
In addition to the HSUS and other plaintiffs, the State of New Mexico has been granted leave to intervene on the side of the plaintiffs in the case. In its memorandum in support of its intervention, the Attorney General for the state writes:
New Mexico has a legal interest in its sovereign right to regulate land, air and water quality within its borders within the parameters of federal law. The impacts of Valley Meat’s
proposed horse slaughter operation, particularly its disposal of carcasses and other wastes, on the environment and public health are subject to regulation by the New Mexico Environment Department and the New Mexico Department of Health. Moreover, federal laws, such as the Clean Water Act and the Clean Air Act, allow states to regulate and enforce their own environmental quality programs, so long as such programs are approved by the federal government.
Since the meat processing plants have processed beef in the past, some may question why there’s concern about horse meat, but not about beef. Well, the major difference, as noted by the Judge in her TRO, is that horses, unlike cows, are primarily companion animals. As such, *companion animals are given drugs strictly forbidden to food animals. These drugs can not only lead to dangerously adulterated meat (which New Mexico does not want sold from the state), they can also enter into the ground, and into the waterways surrounding the plants. These drugs could impact on the health and safety of the people surrounding the plant, as well as potentially impacting negatively on other food products. The state, as guardian for land and water for New Mexico, will also incur added expense ensuring these drugs do not contaminate the land and the water. I’m actually astonished other potentially impacted states have also not sought to intervene, for this same reason.
According to Judge Armijo’s decision:
Turning to the grants of inspection, as previously stated, the grants of inspection were based, in relevant part, on the existence of the FSIS Directive to protect the public health and safety. The Court is not persuaded that the grants of inspection would have been issued in the absence of this Directive, the express purpose of which was to protect the public health and safety from the unique chemical residues possibly present in equines. Although the Court must afford deference to the FSIS’s actions, the Court does not find credible the Federal Defendants’ assertions that the grants of inspection would have been issued in the absence of the Directive given the express purpose of the Directive to protect the public health and safety and given the fact that FSIS specifically incorporated the Directive into their grants of inspection. The Court therefore concludes that Plaintiffs have established a substantial likelihood of success on the merits of their NEPA and APA claims challenging the grants of inspection.
Now, returning to the issue of an expedited hearing. The USDA did not ask for this because it’s a bad ass or meanie. It did so, because once it submitted the Administrative Record relevant to its decision to begin horse meat plant inspections, all the relevant facts pertinent to the case are now available to the judge. Some of the defendant intervenors had requests for discovery, but these really aren’t relevant for an APA case (as the plaintiffs’ lawyer, Bruce Wagman, noted).
(Note, I have a FOIA into the USDA to get a copy of the documents linked in the Administrative Record Index. When I get copies, I’ll post at my Documents web site.)
The plaintiffs concur with the request for an expedited hearing, as long as their motion for re-wording the TRO and a reconsideration of the bond amount are considered. I imagine these will be discussed in today’s Status hearing.
The point is, the facts are in, the arguments have been made, and are being made, and the Judge will have what she needs to make a decision sooner, rather than later. This is better for everyone. An expedited hearing doesn’t strengthen the USDA’s case, or undermine the animal welfare folks case. Point of fact, based on precedent and argument, it’s highly likely the plaintiffs will win this case. I would be extremely surprised if they didn’t.
So the USDA is not the bad guy in this.When Congress reinstated horse meat inspection funding, the USDA had no choice but to begin the process to issue horse meat inspection permits. When Valley Meat et al sued the USDA to begin issuing permits, it had no choice but to hasten its deliberations (and skip NEPA in the process). And the USDA has no choice when it comes to arguing this case in court to the best of its ability, or to work for an expedited decision, as responsible representatives of the citizens of the country, as well as the agency tasked with enforcing the laws passed by Congress.
If the plaintiffs succeed, then the permits will be on hold while the USDA fulfills its NEPA responsibilities. While this is happening, those of us who do not support slaughtering horses for meat, have an opportunity to permanently ban horse meat slaughter, and the transport of horses for horse meat slaughter, by supporting the SAFE Act.
*More on this in a companion article, Eating Flicka: A Good Idea?