Judge agrees to TRO for Rains in confusing order

horseGood news, and confusing news.

Judge Armijo enjoined the USDA from providing inspectors for horse meat processing to Rains Natural Meats, which is good news. However, she did so in a rather baffling order.

Unlike the earlier Temporary Restraining Order (TRO) associated with Valley Meat and Responsible Transportation, the TRO related to Rains is given a termination date of Oct. 4, with the Magistrate Judge then determining whether to extend it beyond this date. The Judge extended the TRO for the other two plants until October 31, 2013, when she expects to have her decision in the case.

So the TRO for one plant ends earlier than the TRO for the other two plants—all for the same case. And the Magistrate Judge is the one to determine if the evidence is such that the TRO should be extended for Rains, when Judge Armijo was the one to determine the length of the TRO based on the legal merits for the other two plants.

I’m reminded again that I’m not a lawyer, because I don’t see any good and logical reason why Judge Armijo would have Judge Scott determine whether the TRO should extend beyond that date, when she didn’t do so with Valley Meat and Responsible Transportation. Perhaps there’s some hidden logic that requires legal training in order to assess the reasoning for issuing such an inconsistent order.

Or perhaps I just need to hit my head against the wall a dozen times in order to understand.

In the meantime, the USDA FSIS sent me a CD with the documents associated with the Administrative Record index for the case. There’s no direct link between the index and the documents; you’ll have to look up the document number in the left column of the index, and then search for the document in the ordered file list.

Interesting reading, even if the USDA did get a little heavy handed with the redactions.


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?

Single horse on hillIf 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.


Horses on the Range…and in the oven


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.


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.


TRO For all horse meat plants set to same date


Update on Front Range Equine Rescue et al v. Vilsack et al:

Responding to a filing yesterday, Judge Armijo agreed to set the expiration date for the TRO for Rains Natural Meats to the same date as the other two plants: October 31, 2013. By that time, Judge Armijo will have a decision in the case.

Rains Natural Meats has asked the court to include it in the bond set by Magistrate Judge Scott. In the meantime, the USDA has filed a Supplemental Administrative Record covering Rains. I have issued a FOIA for the associated documents. I am particularly interested in reading the communications related to not needing a wastewater permit from the Missouri DNR.

You can see all of these documents at Docs at Burningbird.

There was also a hearing in the Missouri court case related to Missouri DNR being prohibited from issuing wastewater permits for horse meat plants. I don’t have access to these court documents, but can guess from the docket filings (available on Case Net) that the purpose of the hearing was to expedite a decision on this case, too