Last year, Congress passed an amendment to a spending bill that prohibited the slaughter of American horses for food exports for most of 2006. Due to begin on March 10, the ban would save tens of thousands of horses destined for human consumption overseas. Because horses hold a unique place in U.S. history, the ban received overwhelming public and Congressional support, culminating in lopsided, bipartisan votes in both the House and the Senate. After a tough conference committee fight, the amendment remained in the final 2006 Agriculture Appropriations bill, and President Bush signed the legislation into law in November.
Cased closed, right? After all, Congress' intent was clear, and the provisions of the law were unambiguous. But the three foreign-owned horse slaughterhouses in the United States—two in Texas, one in Illinois—have been scheming to circumvent the law, and they have found a willing, if unlikely, conspirator: the U.S. Department of Agriculture (USDA), the very agency responsible for implementing the agricultural laws that Congress passes.
The USDA recently issued a new regulation that it will allow the three slaughterhouses to implement a "fee-for-service" horse inspection program. The USDA's decision will allow these European-owned companies to continue butchering tens of thousands of horses this year, neatly circumventing the amendment that Congress passed barring the use of federal funds to inspect horses destined for slaughter for human food.
But animal advocates are not going to let the USDA send American horses to foreign restaurants without a fight. With March 10 rapidly approaching, The HSUS and others filed a motion on Wednesday with the U.S. District Court in the District of Columbia, seeking a temporary restraining order to block the USDA's new regulation from going into effect until horse advocates have their day in court.
At issue is whether last year's Congressional amendment was specifically intended to ban the slaughter of horses for human consumption overseas—as the sponsors of the measure have indicated—or merely about prohibiting the use of tax dollars to fund horse inspectors, as the USDA's maintains to justify its decision to swap horse-slaughter funding schemes as the last minute. The U.S. agency has even argued that it is bound by the Federal Meat Inspection Act (FMIA) to inspect all meat destined for human consumption.
The USDA's argument has not passed the sniff test with many people. As The Washington Times explained in an editorial published on Valentine's Day, the USDA "absurdly maintains that since the amendment doesn't ban horse slaughter outright, it is legally bound by law to continue the inspections. USDA points to language in the conference committee report: 'it is the understanding of the conferees that [USDA] is obliged under existing statutes [i.e. the FMIA] to provide for the inspection of meat intended for human consumption.' Well, of course. The conferees were simply saying that, despite the ban on funds for horse inspection, inspections of all other meat will continue as always."
What's more, the newspaper argues, the USDA is trying to have it both ways, in a transparent attempt to appease a small, economically marginal industry. "To fit its faulty legal analysis into a workable inspection scheme, USDA will allow the slaughter plants to pay for the inspections under a fee-for-service statute usually reserved for game animals and those not covered under the FMIA. But here's the trick: USDA is using the FMIA to argue inspections must continue, but without funding, it is also using the fee-for-service statute. As one Humane Society [of the United States] lawyer quips, 'It would be the first time one animal was covered by both laws.' It probably isn't entirely legal either..."
Aside from violating the letter and spirit of the new horse slaughter law, the USDA's actions, our suit contends, also run afoul of FMIA itself, which requires the government to cover the costs of horse inspections, not private industry with its self-serving interests. "This statutory ban on private funding of federal inspectors, first passed in 1906 and reaffirmed in 1948, was expressly designed to eliminate threats to the public health based on inspectors' conflicts of interest," our lawsuit says, "and grew out of 'the principle that inspectors on whom American consumers must rely for the purity and wholesomeness of their meat should be paid by the consumers themselves, through the Federal Government, and not by those whose products they were inspecting.'"
The suit—whose plaintiffs include the American Society for the Prevention of Cruelty to Animals, Animal Welfare Institute, Society for Animal Protective Legislation, Doris Day Animal League, and American Humane Association—also argues that the USDA's actions violate the Administrative Procedure Act (APA).
The APA requires that federal agencies publish a proposed rule in the Federal Register, with a period for public comment, and then publish the final rule no less than 30 days before the effective date. The USDA jumped right to the final rule, which the APA allows only "when the agency for good cause finds...that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." (Such a "good cause" occurred on December 30, 2003, a week after the first confirmed case of mad cow disease in the United States, when the USDA issued an emergency rule banning the slaughter and sale of downer, or nonambulatory, cattle in the American food supply.)
"The only 'cause' being served here is financial bottom line of the wildly reviled horse slaughter industry," says Wayne Pacelle, president and CEO of The HSUS. "The USDA’s actions are a blatant abuse of executive power, a violation of federal law, and an insult to the American people. Americans want horses treated with dignity and respect, not served up on a plate in Belgium or France. The U.S. Department of Agriculture is rewriting the rules as if the views of the Congress and the American people don’t even exist."
Other Views, Other Voices
While the merits of the case should be enough to convince the court to grant the injunction, the motion also includes sworn statements from residents who, because they had no chance to participate in the rulemaking process, will continue to suffer the consequences of living next to a horse slaughterhouse if the USDA follows its current plan. Not only do residents who live near the Dallas Crown plant in Kaufman, Texas suffer from air pollution that affects the "emotional and physical well-being of our patients and families" and from noxious odor that "makes it difficult to breathe," but they also have to deal with regular releases of horse blood in their neighborhoods. "This is because," one resident says, "the plant does not operate according to code and often has blood spills and overflows that clog up the local wastewater treatment plant and septic systems."
Other quotes from residents who live near one of the three horse slaughter plants in the United States:
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"I am unable to use my yard for outdoor activities, such as barbecuing, sports, or spending time with my family and friends."
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"When it is hot...the smell is so bad that we cannot open our windows to enjoy fresh air or cool breezes."
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"I also love to garden but am unable to do so because of the smell."
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"My family does not visit my home because of the smell and other nuisances coming from the plant."
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"It greatly upsets me to know that healthy, majestic horses are being slaughtered in my community."
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"Horses’ cries wake me up in the night and upset me so much that I have trouble sleeping.”
Residents are not the only ones affected or put off by the USDA's brazen action to continue to allow horse slaughter. Peggy W. Larson, DVM, who worked for six years as a veterinary medical officer for the USDA and who once managed Vermont's meat inspection programs, provided the plaintiffs with
a declaration in support of the injunction request. In it, she offers an inside look at horse transportation and slaughter, and it isn't pretty. "There is little incentive on the part of the owners of these facilities to properly care for these horses, as money devoted to proper care reduces the plant owners' profits and does not benefit the slaughter process," Larson notes.
Congress is equally outraged by the USDA. In January, 40 members of the House and Senate wrote to U.S. Agriculture Secretary Mike Johanns and demanded that the agency stop all horse slaughter inspections on March 10, as required by the very law they passed. "The agency must cease inspection of horses for slaughter. Failure to do so constitutes willful disregard of clear Congressional intent on the part of the USDA," the letter said. "The agency has absolutely no authority to circumvent a Congressional mandate and effectively rewrite an unambiguous law at the request of the horse-slaughter industry."
"It is beyond our imagination in the U.S. Congress that the USDA would flout its mandate and spend tax dollars…to circumvent this law," said Representative John Sweeney (R-NY). "Even our most hardened opponents knew that the purpose of the amendment was to stop horse slaughter—there was never any question about that. It's disturbing that an agency like USDA feels it is appropriate to obstruct a law passed by an overwhelming, bipartisan majority in Congress when their sole mission is to implement the law."
Back-Door Bid
On September 20, the U.S. Senate voted 69-28 to pass an amendment to the 2006 Agriculture Appropriations bill that defunds USDA inspections for one year at the three U.S. horse slaughter plants and at border inspections of slaughter-bound horses. The amendment was identical in language to a U.S. House amendment, which passed in June by a vote of 269-158. Together as language retained in the final bill, the measures would effectively shut down the three slaughter plants that make up the horse slaughter industry in the United States, and would temporarily end horse slaughter for human consumption for most of 2006.
After suffering this sound defeat in Congress, the plants quietly petitioned the USDA to establish a "fee-for-service" inspection system for horse slaughter in lieu of federally funded inspections. Furthermore, the plants asked that the USDA implement this change without notifying the public or following normal rulemaking procedures, claiming that it is in the "public's interest" to keep the maneuver secret.
When we discovered that the USDA was considering the industry's petition, The HSUS and other animal protection groups immediately contacted Secretary Johanns and the USDA. The HSUS asked the USDA to deny the petitioners' request and to implement Congress' clear mandate to halt the slaughter of horses for human consumption.
In their letter to Johanns, the animal welfare groups laid out many of the same arguments expressed in today's lawsuit. The letter, clearly, fell on deaf ears.
“The USDA is playing games and ignoring the directives of Congress while the lives of America’s horses, who have served us faithfully and provided us with companionship, are at stake,” said Michael Markarian, executive vice president of The HSUS. “By granting this 11th-hour bid by the slaughterhouses to re-write the law, the USDA is thumbing its nose at Congress and trying to substitute the judgment of foreign gourmands for the judgment of our elected lawmakers.”
To protect the slaughter ban from additional interference, animal protection groups have redoubled their efforts to enact the American Horse Slaughter Prevention Act, which will codify the ban on horse slaughter as a matter of permanent law. Animal protection groups are lobbying for the passage of H.R. 503 and S. 1915, a permanent ban on horse slaughter for food, introduced by U.S. Reps. John Sweeney (R-NY), John Spratt (D-SC), Ed Whitfield (R-KY) , and Nick Rahall (D-WV) in the House, and U.S. Senators John Ensign (R-NV) and Mary Landrieu (D-LA) in the Senate.
