Ringling Brothers Parent Company going after advocacy group donor lists

Feld Entertainment, Inc (FEI), owner of the Ringling Brothers and Barnum & Bailey circus, is attempting to coerce confidential donor lists from the animal welfare groups it has battled with for 13+ years in the DC federal courts. FEI’s lawyers are doing so in an attempt to prove that the animal welfare organizations it’s suing—the Humane Society of the United States, Animal Welfare Institute, Fund for Animals, Born Free USA, and the Wildlife Advocacy Project—engaged in “donor fraud” in their solicitation of funds to continue their battle to help circus elephants.

Specifically, FEI’s discovery request demands the following:

27. All documents that refer, reflect or relate to donations (whether financial or in kind) that were designated or otherwise earmarked by the donor for use in connection with the ESA Action or that were designated or otherwise earmarked by the donor to support work or any other form of activity concerning Tom Rider, FEI or FEI’s elephants.

28. All documents, not otherwise covered by Request No. 27, that refer, reflect or relate to donations (whether financial or in kind) that were made as a result of the ESA Action, Tom Rider, FEI or FEI’s elephants.

29. All documents sufficient to identify each and every person or entity who made any of the donations described in Request Nos. 27 and 28.

Considering that any donation to any of the agencies in the last 15 years could have come about, at least in part, because of the agencies’ actions in regards to circus elephants, and we’re basically looking at giving FEI access to every person who has donated to one of these animal welfare groups. Even if the court narrows the request to only those donations specifically designated for the struggle to free Ringling Brothers circus elephants, we’re still looking at exposing a significant number of donors to direct inclusion in a complicated, intimidating legal action.

Donors’ freedom of association rights, guaranteed under the First Amendment, allow us to support organizations and causes without fear of repercussion or reprisal. An important aspect to this is being able to privately provide financial support to advocacy groups, as long as state and federal laws are met.

The only possible reason for demanding these lists is so that FEI’s lawyers can, we presume, contact donors directly in an attempt to find “co-plaintiffs” for its lawsuit. FEI assures us it would not do so to “harass” the people, according to its definition of “harass”, but we can easily imagine the shock people would experience receiving a letter from FEI’s lawyers related to this lawsuit. Depending on how the letter is worded, many of these people may feel that if they don’t join with Feld, they’ll find themselves lumped into the lawsuit on the other side. This is the worst case scenario demonstrating why it’s essential for these donor lists to be kept private.

From the animal welfare group’s request for a protective order against this demand:

Subjecting individuals to the stress of depositions, the cost of retaining counsel, and the risk of crushing RICO liability, for their simple act of contributing to a nonprofit organization, is incompatible with the First Amendment’s protection of free speech and association. Furthermore, FEI’s history with regard to animal welfare and animal rights supporters raises real concerns that the harassment to which donors could be subjected would not stop at being embroiled in this litigation.

As an excuse for its actions, the FEI lawyers note that several donors to the organizations are already a matter of public record. However, the lawyers dance around the fact that the donors who have been listed publicly are typically either organizational donors who must indicate their donations in their own public tax forms or individual or organizations donating over a certain amount (usually $5,000), requiring public disclosure.

FEI doesn’t want these people and organizations, though. It wants the names of the little guy, like you and me. FEI’s lawyers can’t intimidate organizations and wealthier donors, both of whom have easy access to legal advice. But you and I? Look around you; look at your friends, family, and co-workers…how would most of these folk react to receiving an intimidating communication from a high priced and powerful law firm? How would you?

There are also serious consequences to the animal welfare organizations. All of the organizations involved in the lawsuit have posted privacy policies. These policies are necessary if they hope to get decent scores from the charity rating services, such as Charity Navigator and the BBB. If the animal welfare organizations are forced into giving their donor lists over to an entity their supporters consider an adversary, such action will, most likely, impact negatively on their rating score. Charity Navigator and the BBB may be sympathetic to the fact that the animal welfare groups have been coerced into giving over their lists, but charity ratings services are focused on providing service to donors, and they’ll have to respond accordingly. Lower charity ratings can, and do, impact on donations.

More importantly, people are going to hesitate before donating to any organization or effort that will end up involving them in the middle of long, drawn out, and incredibly acrimonious legal action.

What’re FEI’s lawyers take on the issue of donor privacy? A laughable suggestion that if only the court would grant its request to have everything in the case covered under a blanket protective order, the donors First Amendment rights won’t be an issue, because the donor lists wouldn’t be made public. I call this suggestion “laughable” because FEI’s lawyers again dance around—on tippy toes, like little Brooks Brothers-suited ballarinas—the fact that the one organization the donors loath the most is the one who would get their contact information and donor activity. Not only get this information but also use it to contact them in hopes of dragging them into a frightening legal morass.

FEI’s lawyers claim they need this information because the bad ass animal welfare lawyers aren’t allowing them to proceed with their action unless there is more than one plaintiff:

Defendants have placed FEI between the proverbial “rock and a hard place.” They claim that FEI must allege more than one scheme and victim to state a RICO “pattern,” but then argue that the First Amendment blocks any and all discovery as to the second scheme and additional victims alleged in the First Amended Complaint.

Though the lawyers for the animal welfare groups are very capable, they’re not faster than a speeding bullet, nor can they jump Feld Entertainment’s legal slush fund in a single bound. I believe it is actually the Judge, applying his legal understanding and training, in combination with precedent and the underlying law, that is forcing FEI into the proverbial “rock and hard place”. This case was fragile from the very beginning—allowing the loss of First Amendment protections and exposing hundreds or even thousands of people to legal intimidation, in a desperate attempt to make it less so, is unconscionable.

The request is made even more absurd by the fact that this case has been covered in the news for many years. People in the animal welfare movement, especially among those fighting for the welfare of circus elephants, are aware of this case. This story, itself, will be linked in several Facebook groups devoted to elephants, generally, and circus elephants, specifically. This, in addition to a Facebook page devoted to the court cases. No one has come forward, no one has joined with Feld. No one.

Hopefully, the Judge will consider the wide dissemination of this information and will determine there is no need to give FEI these donor lists…and the donors First Amendment rights will be preserved.

Bitch

The intent was to finish my book on the Ringling Brothers animal welfare court cases by year-end. After all, the cases have settled down into an analysis of legal fees, and long, silent periods reflecting discovery, with a trial date a year or two (or three) into the future. Publish now, incorporate an epilog into the e-book when all is said and done, and I’ll have managed to write about an ongoing legal case and still keep readers updated.

Then I found out Tom Rider died, and everything has changed.

Who is Tom Rider? There are, in my opinion, four people pivotal to these court cases: Kenneth Feld, who is owner of Ringling Brothers circus; Judge Emmet Sullivan, who presided over both the Endangered Species Act (ESA) Case and the beginnings of the Racketeer Influenced and Corrupt Organizations Act (RICO) case; John Simpson, Feld’s lead attorney, who decided after coming into the ESA case that the best defense was an aggressive offense; and Tom Rider, the only individual plaintiff in the ESA case. Not only was Tom the only individual plaintiff, but he was a key witness: a man who could testify from first-hand experience about how Ringling Brothers people treated the elephants.

Tom’s importance as both plaintiff and witness made him a big legal target in the court case; a rather daunting place to be for a man who never imagined he’d spend the last years of his life in a court fight over circus elephants.

Tom Rider was born in a small, rural town in Illinois. He wasn’t an especially ambitious man, dropping out of high school, and having his ups and downs in the military. He typically didn’t stay at any job for long. He hauled garbage, sold shoes, was a bouncer at a strip club, worked at Disneyworld for a time, got married, and divorced, and kicked around the country doing odd jobs. Eventually, he ended up as “barn man” for the Ringling Brothers circus.

A circus barn man is someone who helps feed the animals, give them their water, and shovel shit. With elephants, a lot of shit. But Tom stayed with the job two and a half years—longer than he stayed with most jobs. He liked working in the circus. He liked that he had his own little cubby hole of a place in the “Pie Car”, which was the train car that contained the circus kitchen. He liked the idea of working for the circus. After all, think about it: working for a circus. Now, how cool is that? If we’re defined by what we do, there are worse things than working for a circus.

Tom was a plain man, some would even say he was a crude man. He peppered his speech with less than polite terms, primarily watched knock ’em, sock ’em action movies, and liked junk food—especially Hostess confections like Snoballs and birch beer (a southern variation of root beer).

Tom also liked to talk and to tell stories. He liked to tell one story about his time at Ringling Brothers and his experience with one of the elephants, Karen.

Not all elephants react with docility to being dressed up in costumes and made to dance to rock and roll tunes. Some elephants, like *Karen, express their unhappiness in ways that can be detrimental to human beings. American circus history is littered with the dead and broken bodies of those people who have experienced elephant frustration, fear, and anger. Though Karen hasn’t yet left a trail of dead bodies in her wake, at Ringling Brothers she is treated with a great deal of caution.

The story Tom liked to tell about Karen was the time she trapped him in a bathroom when the circus was in Boston. Tom was in the bathroom cleaning it when Karen planted herself in front of the door so he couldn’t get out. Tom was stuck for 15 minutes, banging on the door, hollering for Karen to get her butt out of the way, until he got the idea to throw his broom through the door to distract Karen. It worked.

Once Tom was out, though, Karen started tossing hay and apples at Tom, peeved at his escape. I can just visualize that great big elephant, delicately grabbing an apple with her trunk, and lobbing it at Tom as he went about his work. When Tom recounted the story, he probably referred to Karen as a “bitch”, as in, “That bitch had me trapped in the bathroom for 15 minutes! And then she started tossing apples at me!”

When I told Roomie the story, he laughed. I laughed, it’s a funny story. But in the DC courts, an innocent story became a weapon in the hands of an aggressive legal defense.

Feld’s lawyer, John Simpson zeroed in on Tom’s use of “bitch”, because how could Tom care about the elephants and talk about Karen that way? To say she’s dangerous (she is); that she didn’t like him (she probably doesn’t like most Ringling employees), and especially—and this is the ultimate sin—to call her a bitch in his story if Tom truly cared for Karen?

From the trial, with Simpson cross-examining Tom:

Q. Do you recall making — that same film where you made a video of the bags of poop, do you recall also making a video of the elephant Karen?

A. Yes, I do.

Q. You called her a bitch, did you not?

A. Yes.

Q. It wasn’t in loving terms, was it?

A. It was not a derogatory term. I didn’t say, you know — I wouldn’t use rough language. I did call her — it’s like bitch, nice, it was — I was thinking of the time in Boston when it happened.

Q. So you called her a nice bitch, is that your testimony?

A. No, I called her a bitch.

Q. Well, let me refer you to that tape, sir, Defendant’s Exhibit 30, at counter 16:45 to 16:55.

(video played)

Q. So your testimony, sir, was that was a compliment you were giving the elephant?

A. Yes, I mean it was not a derogatory term. I called my daughter that.

Q. You call your daughters a bitch?

A. Oh, yeah.

Q. They don’t take offense to it?

A. No.

Judge Emmet Sullivan presided over the ESA case in the federal district court in DC.

Judge Sullivan is interesting in that he’s never lived outside of the Washington DC area. He was born in DC, grew up in DC (the son of a DC policeman), went to school at Howard University in DC, practiced law in DC, and is now a judge in a DC federal court room. This is a man who has had very limited experience of what passes for life outside of DC. He certainly has had very little experience with someone like Tom Rider: a largely uneducated circus roustabout from the midwest.

Judge Sullivan is also a rather impetuous man. He’s best known for his anger at the Department of Justice in the Senator Stevens’ trial, where he took the unprecedented move to open an investigation into the DoJ’s actions. Another time, he felt a police officer wasn’t telling the truth and walked off the bench—an act that led to a mistrial.

During the trial of a burglary suspect in the mid-1980s, Sullivan walked off the bench in disgust after a police officer gave conflicting testimony, said Roscoe Howard, a friend, and former federal prosecutor. After calming down, Sullivan declared a mistrial because he had prejudiced the case. A few days later, the judge reversed course and released the man.

All three traits that best exemplify Judge Sullivan—his noticeably narrow background, his strong, even at times, intolerant moral code, and his impetuousness—were present in the ESA trial. In particular, the judge had problems understanding Tom Rider, and his lack of understanding eventually tipped over into barely concealed disdain.

Before calling a recess after the questioning about Tom’s use of “bitch”, Sullivan questioned Tom directly about the term (something permissible and even encouraged in a bench trial):

THE COURT: But in your words you called her a bitch affectionately, and then you said like you would call your daughters, right?

THE WITNESS: Yes.

THE COURT: Help me understand all of that.

THE WITNESS: Well, it’s — you know, it’s like somebody — if I would have used the F-word prior to that, to me that would be a nasty way of saying it. But to just say the word bitch is — I mean, I’ve called my daughter that, and it’s like if she does something, I go bitch. It’s kind of a — it’s not the same as if you’re putting a derogatory or a four-letter or six-letter, whatever word in front of it. I’m just saying the word bitch. In other words, when I said that by the train I was thinking of the incident where she blocked me in the toilet for 15 minutes and I couldn’t get her out. That’s what was in my mind, and I just calmly said bitch. It was not — I wasn’t mad at her or something like that where — that’s a difference in the terminology that I would use. But yeah, I’ve called all my daughters that. Just out of affection, it’s not a derogatory.

THE COURT: All right. On that note, we’ll take a 15-minute recess. We’ll start back at 2:45

Later, when Katherine Meyer, a lawyer for the animal welfare groups, was questioning Tom, the Judge again returned to Tom’s use of the word, “bitch”:

THE COURT: You were just teasing the elephant by calling her that name?

THE WITNESS: Yes, sir.

THE COURT: Hardly a term of endearment, though, is it?

THE WITNESS: Not — I guess it’s not — I just — I do it to my daughters, you know, I do it to her. It’s like —

THE COURT: You call your daughters that?

THE WITNESS: I don’t do it as like — it’s just, you know, when you’re — you know, she’s — like my daughter does something that’s, you know, I don’t want to nag and yell and scream at her. It’s like, you know — especially if she starts nagging at me or something. It’s like a term of endearment to me. I don’t know how to other to put it.

THE COURT: I think you said it all.

THE WITNESS: Yeah. Yes.

Said it all, indeed. Tom Rider’s use of “bitch” would return again, and again, and again—in Feld’s lawyers’ documents, defended in the animal welfare group’s own documents, and in Judge Sullivan’s decisions. In essence, if anyone act lost the ESA case for the animal welfare groups, it was Tom’s use of the word “bitch”.

Yet, how wrong was his use of the world? Living in Missouri, as I do, not all that far from Tom’s hometown in Illinois, how he used the word “bitch” isn’t all that uncommon here, and the use of “bitch” as a joking reference to friends and family member is a frequent happening in modern parlance. There was far too much attention paid to Tom’s use of the word, “bitch”. Far too much.

Tom never had much of a chance in the DC courts. Toss an unsophisticated man who tends to be garrulous, into an intimidating courtroom environment filled with high-priced lawyers from prestigious law firms, in a city as far away in temperament and personality as rural Illinois is from DC, and you have an adversarial lawyer’s dream come true. The combination worked for Feld in the ESA case, and I imagine Feld’s attorneys expected the same success during the trial in the RICO case.

But then Tom died, and everything has changed.

It’s difficult to trip up a dead man in court, even more difficult to speak ill of a dead man no longer around to defend himself. The RICO case won’t be a bench trial, it will be in front of a jury, and we can expect that not all of jury members will have problems with the use of a word like “bitch”.

The last few months since Tom died we’ve seen a blizzard of courtroom filings, including a monstrously large motion for legal fees from Feld demanding 25 million dollars from the animal welfare groups (and their lawyers) for the ESA case. The amount is more than what all of the animal welfare groups—The Fund for Animals, Animal Welfare Institute, and Born Free USA—have in combined assets, so now Feld is attempting to bring the Humane Society of the United States (HSUS) into the ESA case. This, after the case has already been decided, with the HSUS not participating in the case or the trial—participation that may, for all we know, have altered the outcome of the case. The reason Feld gives for pulling in the HSUS at this very late date is that the HSUS has formed a de facto merger because of a contractual relationship with one of the animal welfare groups in the ESA case, the Fund for Animals. However, the concept of a de factor merger is basically foreign to nonprofits, and the groups still exist as separate legal entities.

But let’s be upfront about the real reason for pulling in HSUS, shall we? The HSUS has economic reserves the Feld lawyers would just love to tap.

(Feld also included HSUS in the RICO lawsuit, which I’ll have more to talk about a little later.)

The attorney fee request is breathtaking, dragging in HSUS after all the decisions have been made seems blatantly unfair (and more than a little screwy), but the most recent, and alarming, motion happened in the RICO case. The animal welfare groups filed for a protective order because Feld’s lawyers are demanding lists of private donor names and contact information. Why the demand? Because Feld’s RICO case is fragile, at best, and the only way it can possibly proceed is if Feld Entertainment works to establish that it is not the only entity defrauded by the nefarious and dastardly animal welfare groups; that those who donated for the fight to free circus elephants are also victims.

(With an implication in earlier filings that if the donors weren’t victims, they must then be co-conspirators.)

The request is extraordinary and chilling, as reflected in the motion for the protective order:

Should FEI [Feld Entertainment Inc.] gain access to confidential donor information, both current and future donors would see their protected political conduct chilled by the fear of financial burden and reprisal. This fear would be particularly well founded in light of FEI’s history of harassment and retaliation against individuals and organizations that seek to remedy animal mistreatment. The chilling effect on the donors on whom the Nonprofit Organizations depend for their continued existence would also irreparably harm the Nonprofit Organizations, along with other animal welfare and animal rights organizations that depend on the same donors for support. FEI’s “donor fraud” argument is unprecedented: a Court ruling that an adversary of a nonprofit advocacy organization may obtain that organization’s donor information merely by alleging that the organization misled its donors would set a disastrous precedent that would alter the legal landscape for all nonprofit and advocacy organizations.

Feld’s lawyers are not stupid people. They know that they’ll have a fight on their hands by asking the courts to set aside the Constitution in allowing their request. They had implied in earlier hearings they would not do so, so what has changed to make them so desperate?

Tom Rider died. Their own warped version of “Mr. Smith goes to Washington” they have become dependent on has ended before it began.

As it stands today, decisions I expected to be years in the future could be happening in the next few months, and both the ESA and the RICO cases might soon be over. My Ringling Brothers book is on hold as I wait for new developments. Unlike in the past, where I rarely talked about the case at my site, I’ll be providing frequent updates on what’s happening with court cases—the RICO case, in particular, since it can have such serious ramifications for animal welfare and environmental groups. The animal welfare groups can’t discuss the case because if they do, it ends up featured prominently in a Feld filing demanding yet more control over the release of information about the case.

The animal welfare groups and associated lawyers couldn’t even briefly issue a note about Tom’s death. I found out about it from a court filing that stated simply, “Pursuant to F.R.C.P. 25(a) notice is hereby served of the death of Defendant Tom Rider on October 1, 2013.”

A hell of a way to find out that one of the primary people in your story is dead. Rest in peace, Tom. Rest in peace, you goodhearted bastard, you.

* One major reason for Karen’s temperament could be chronic pain.

Horses in the Oven: The USDA is not the Enemy

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.

Front Range Equine Rescue et al v. Vilsack et al court documents

*More on this in a companion article, Eating Flicka: A Good Idea?

Eating Flicka: A Good Idea?

If we separate the moral argument about eating companion animals and instead focus on the safety of horse meat, the end result remains the same: starting up the horse meat industry in the United States is not a good idea. To get a good understanding why, we need to take a closer look at what’s happening with the horse meat industry where the meat is currently allowed: The European Union (EU).

The EU has had procedures in place to ensure healthy horse meat for years, yet stories this year about horse meat incorporated into beef products, and horse meat testing positive for drug residue have surfaced repeatedly.

Horses in the EU are required to get a “passport” by six months of age, and all administered medications get recorded in the passport. Yet there have been a significant number of incidents where a passport for one horse is used with another, as well as incidents of fake passports.

Equine Essentials notes the issues in The Problem with Horse Passports:

The passport system has had plenty of criticism for not functioning properly, not being enforced and being subject to a lot of abuse. In February 2013 the BBC reported that 7000 unauthorised documents have been circulating in the UK since 2008. Not to mention the fake horse passports that are being made continuously. Owners report that veterinarians often don’t use the passport to record care history and many opt for the old way of doing things and issue vaccination cards instead. Many competing grounds are also happy to just see the vaccination card and don’t check passports.

Problems aside, the supposed benefit of the Passport system is it provides traceability of the horse, ensuring that meat from horses that have received hazardous drugs doesn’t enter the food chain. There is no such system in the United States. At one time, the USDA considered implementing a system of traceability known as the National Animal ID System, or NAIS. However, because of pushback from farmers and livestock associations, the USDA dropped its plans. Instead, the USDA adopted a relatively weak rule that animals transported across border will have to be accompanied by formal identification, including a veterinarian certificate or owner statement. No passport, no electronic tracking, just paperwork.

The new rule’s purpose is to track the course of a diseased horse across state borders. However, tracking a diseased horse is only one component of ensuring the safety of the meat. It’s also important to know what drugs a horse has been given. As the USDA notes in its inspection procedure, horses are companion animals and are usually given medications forbidden a food animal like a cow. In particular, one drug, phenylbutazone or “bute” as it’s commonly called, is frequently used with companion horses. But bute can also cause a fatal disease in humans called aplastic anaemia. The drug is so dangerous that any use in the horse makes that horse ineligible for processing as meat.

To check for drugs, the USDA implemented an inspection routine that randomly samples horses, based on the number of horses within a “lot”. If the lot consists of 10 horses, the USDA inspectors will test 1 horse; between 11 and 50, 2 horses; between 51 and 100 horses, 3 horses are tested; and if the lot consists of 100 or more horses, a maximum of 4 horses are tested.

Is this random sampled testing sufficient to ensure that the horse meat is free from drug or other residue that can cause harm? Well, to answer that, we have to visit our neighbors to the north.

The Toronto Star has written a series of investigative stories about the processing of horse meat in Canadian factories. It followed a race horse named Backstreet Bully, as it left a race course only to be shot dead in a knacker’s yard. The story detailed how, through a series of deceptions widely practiced in the kill horse auction community, a horse who had been administered drugs typically given to companion horses, ends up at a horse meat slaughter auction house. The story effectively demonstrates how ineffectual Canada’s own “passport”, the Equine Information Document, is when it comes to preventing drug tainted meat from entering the human food chain.

The federal government relies heavily on the accuracy of the passports, which have been in existence since 2010 and are the first line of defence in keeping tainted horse meat from the human food chain. The government does not require owners selling a horse for meat to provide additional medical history such as veterinary records.

Dr. Martin Appelt, the Canadian Food Inspection Agency’s national veterinary program manager, acknowledged the government relies on an honour system and hopes that the documents are “a reflection of the truth.”

But it’s far from a foolproof system: last year, tainted horse meat from Canada, bound for Belgium, was found to contain traces of two controversial drugs, bute and clenbuterol, the latter on the list of drugs in Canada that are never to be given to animals sold for human food.

The Canadian Food Inspection Agency began testing horse meat for bute in 2002. In detecting prohibited veterinary drug residues in meat, there is an overall compliance rate of 96 to 98 per cent, according to an agency spokesperson. Testing is random though a horse or its carcass will be tested if there are red flags or concerns.

Though Canada has implemented it’s own passport system, it also relies on random testing, just like the USDA. Yet horse meat tainted with dangerous drugs has still managed to slip through to the European market. We, in the US, rely only on random testing—how safe do you think the meat will be?

Of course, one can always choose not to eat horse meat. We’re not going to be exposed to bute-tainted meat if we don’t eat horse meat. The problem with this approach, though, is that sometimes people are eating horse meat and aren’t even aware they’re doing so.

This year, the EU and the UK were shaken when horse DNA was found in meat labeled as 100% beef. Food Safety News put together an infographic charting the early days of the scandal, but the problem is ongoing. Just last week, authorities noted that two people involved in the horse meat contamination were arrested in Britain.

The Horse DNA tainted beef has shown up all throughout Europe and the UK: in foods ranging from fast food burgers to the famous IKEA meat balls. Recent testing has shown that over 5% of meat labeled “beef” in Europe is contaminated with horse meat DNA. This isn’t a small percentage, and demonstrates that the horse meat contamination is endemic—especially when we consider the DNA testing is more thorough in some countries, than others.

What’s more critical is that testing also discovered that one half of one percent of the horse meat tested positive for bute—a far more alarming discovery. Authorities downplayed the findings, saying the percentage is trivial, but the assertion of “no worries” doesn’t jibe with the laws restricting any presence of bute in the human food chain.

The EU may state that the issue is a matter of food fraud and not of food safety, but in the end, it’s all about food safety. Food safety is about preventing harm to people, regardless of the impetus behind the harm: human greed or human carelessness. And, as noted in the NY Times article just linked, Europeans have only been testing for bute…there are other drugs used with horses that can also potentially cause harm if consumed by humans or other animals.

If you live in the United States, you may think this isn’t a problem for any of us. After all, we don’t typically eat horse meat in this country. None of the horse meat processed in the country is targeted for human consumption within the country. The meat is intended for human consumption in other countries, or supposedly for animals in zoos. Why should we worry, then?

Leaving aside the fact that we should question our indifference about inflicting potentially dangerous meat on the rest of the world, not to mention tigers, lions, and bears in zoos, we are at risk for our own version of the European horse meat scandal by starting up horse meat processing in this country.

Horse meat is generally less expensive than beef, especially horse meat from older horses or scrawny wild mustangs. It’s going to be tempting to shove a little horse meat into the beefwhen creating cheap frozen foods, or foods served at inexpensive restaurants. In addition, horse meat is leaner than beef, which has an appeal for a different reason. Because of our insistence of shoving corn down cows’ throats, we have almighty fatty beef in the US. Yet weight conscious people want low fat meats. Access to lean meat to mix with our fatter beef in order to control fat content is an attractive proposition. Right now, we’re actually importing lean beef trim from countries like New Zealand, just to get that “98% lean” label in the supermarket. Why not toss in a little leaner horse meat rather than import lean meat scraps?

We wouldn’t need to be concerned about our own version of “food fraud” if we did DNA testing on our meat in order to ensure that “beef” is “beef”. Canada did this recently, to assure its citizens that Canadian beef is real beef (they hope, because just like testing for drugs in horse meat, the horse DNA testing samples were limited). The problem is, the US doesn’t do any DNA testing of our locally derived meat. Some folks did for our seafood, and found a whole lot of “mislabeling”. We do species testing for imported meat, but we don’t do any DNA testing of our locally derived meat.

Well, isn’t that just peachy?

Let’s be blunt, we’re right there with the folks in Canada and the EU: food safety is based on the honor system more often than not. Most of the time, it works. Sometimes, though, the honor system doesn’t work as well as we’d like. Once we start processing horse meat in the US, the only way we can guarantee we don’t get any horse meat in our hamburgers is not to eat hamburgers.

Or chicken.

I’d stay away from goat, too.

ASPCA et al vs. Feld Entertainment Inc

I finally managed to get all of the ASPCA et al vs. Feld Entertainment court documents I have downloaded, linked to copies of the court dockets for your viewing pleasure.

Over 600 separate filings, many with multiple documents, each with hundreds of pages. I don’t have all the court documents, but I have most, including attachments and court exhibits. I typically didn’t download any court document that was a duplicate of a previous filing or had to do with court mechanics.

I also have uploaded the court documents for the associated RICO court case. Eventually, I’ll finish by uploading the appeal documents, as well as documents for peripheral court cases.

In addition to the court documents, the main index page includes links to many of the videos that were played during the trial.

Of the videos, the one that bothered Judge Sullivan the most is a young elephant, gently exploring a bike rack with her trunk. Ringling employee Troy Metzler casually walks up to her and strikes her trunk with a bullhook. An elephant’s trunk is very sensitive, and the young elephant is both startled, and in pain. Before the video clip ends, another older elephant reaches out, seemingly to comfort the younger.