Welcome to Habitat For Horses!|Tuesday, February 9, 2016

Letter From The Editor: A Trial Court Surprise 

inspection of horse meat will begin

From: Food Safety News
By: Dan Flynn

Friday’s ruling by U.S. District Court Judge Christina Armijo surprised me.

New Mexico Court RoomI was expecting New Mexico’s top federal judge to issue a permanent injunction against USDA from providing equine inspection services. Then I thought Department of Justice attorneys assigned to represent USDA would appeal to the 10th Circuit Court of Appeals where Armijo’s ruling would be reversed.

My thinking was that New Mexico’s political leadership, from both parties, are enough anti- horse slaughter that the body politic would influence Armijo. It was part of a stereotype I’ve created in my own mind about New Mexican political groupthink.

But surprise me she did, especially by nailing the legal reasoning I thought we would see from a 10th Circuit panel of judges. After reading Armijo’s 33-page decision, I was struck by how clear everything looks now. With some tweaking along the way, Congress has for more than a century tasked USDA with inspecting meat and meat products, be it from beef, lamb, pork, horse or whatever else has hooves.

The legal challenge was based on apparently misguided readings of the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA). Both are about government decision-making where discretion exists, not where government action is mandated.

USDA has a job to do, albeit one that some find unpopular.

In other words a grant of inspection for meat is a “ministerial act,” the common definition of which is one “performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment.”

The concept of the ministerial functions of government is a good thing because it means we don’t have to worry about whether the bureaucrat at the passport agency or building department likes us or not. We still get our passport or building permit based solely on meeting the application requirements.

My powers of prediction went south on this one when all the lawyers involved agreed to a so-called “expedited review.” My mind immediately went to why each side agreed to it. I though the government attorneys figured they win on the law once the case got to the Appeals Court in Denver and that the Humane Society of the United States (HSUS) wanted a trial court win timed right before a final budget struck deal is struck in Congress.

HSUS is the power player in this controversy, and it does pursue its goals as a game of chess, not checkers. It seems reasonable to me to think the end game is this controversy is always Congress, which can continue to stop and start horse slaughter inspection through the appropriations process.

That’s the reason this is a big loss for HSUS. It was expecting a well-timed win, and instead has to now retool for the new reality. It went up against the largest and most powerful law firm in the country (DOJ) with the help of one the nation’s premiere animal law experts and attorneys, but lost.

Sort of like St. Louis and Boston in the World Series. Neither has anything to be ashamed about. And, for the record, I also thought St. Louis would win.

Attorney Wagman has already filed his notice of appeal to the 10th Circuit and HSUS has vowed to continue the fight at the state level and in Congress. (They re-tool fast.)

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