Source: Multiple
“The burden is high, but plaintiffs have demonstrated to this court that potential harm to the environment outweigh defendant’s concerns…”
ALBUQUERQUE – The Roswell horse slaughter facility is on hold.
U.S. District Court Judge M. Christina Armijo granted a temporary restraining order against the Valley Meat Co., which received approval from the U.S. Department of Agriculture to become the first processing facility for horse meat in the U.S. in seven years.
“The burden is high, but plaintiffs have demonstrated to this court that potential harm to the environment outweigh defendant’s concerns,” Armijo said from the bench, effectively shutting the Roswell facility and another proposed horse slaughterhouse in Sigourney, Iowa, from opening as early as this Monday.
A bond hearing will be set Monday, and the two sides will meet again within 30 days before Armijo to hear arguments about a permanent injunction,
“This is out of left field, and we never saw this coming,” said Valley Meat Co. attorney Blair Dunn.
Given the high threshold for plaintiffs to receive a restraining order, even the lead attorney for opponents admitted he was caught off guard.
“I was surprised,” attorney Bruce Wagman said outside court. “I’m just one of those people who hope for the best and expect the worst, and take whatever comes.”
“Needless to say, this further delay is a problem,” Dunn said, telling New Mexico Watchdog he doesn’t anticipate the Valley Meat facility opening for “six months, at least.”
“There’s more work ahead but it’s a good day for horses,” said Laura Bonar of Animal Protection New Mexico.
The Humane Society of the United States and other opponents of the Valley Meat Co. facility introduced the lawsuit, arguing the plant was a risk to public health and to the environment.
Wagman argued that horsemeat could be contaminated with drugs that could be dangerous for humans to eat. The facility could end up polluting groundwater, he said.
“It’s an environmental looming nightmare,” Wagman told the court.
But attorneys for the Roswell plant — as well as lawyers for prospective facility slated to open in Iowa and the Yakama Nation in the Pacific Northwest — argued that fears are based merely on speculation.
“It’s a lawful business, it’s a safe business,” said attorney Pat Rogers, speaking on behalf of the owners of the proposed Iowa facility.
“This is not a hypothetical problem for my client,” said Yakama Nation attorney John Boyd. “Their land is being destroyed” by an estimated 12,000 wild horses the tribe says are roaming wild.
“(Friday’s plaintiffs) are seeking a judicial remedy when they really need to seek a legislative remedy,” argued Department of Justice lawyer Andrew Smith, adding, “Congress has mandated this activity.”
In 2006 the U.S. prohibted horse slaughter, and the last plant closed in 2007. But in 2011, Congress quietly removed the rider enforcing the ban from an omnibus spending act. Then, on June 28, the USDA approved permits for the Roswell facility.
The plant has become a hot-button issue extending beyond New Mexico’s borders, and Friday’s ruling was closely watched across the country. In addition to the New Mexico and Iowa facilities, a horse slaughter plant is proposed in Missouri.
The debate has divided politicians of both parties in New Mexico, conservation activists and Native American tribes.
The Navajo Nation — which estimates that anywhere between 20,000 to 75,000 feral horses roam the reservation’s 27,425 square miles — came out in support of the Roswell facility while the Mescalero Apaches and some tribes outside New Mexico say they want the slaughterhouse blocked.
Now that Armijo has ruled, the next step is a bond hearing before a magistrate judge on Monday in Albuquerque. Dunn says he will ask for at least $10 million dollars for Valley Meat and the proposed facility in Missouri.
Read TRO/Injunction below or click (HERE) to download
vs.
No. 1:13-CV-00639-MCA-RHS
Plaintiffs,
TOM VILSACK, Secretary U.S. Department of Agriculture, et al.
Defendants.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
FRONT RANGE EQUINE RESCUE,,
et al.
ORDER
THIS MATTER is before the Court on Plaintiffs’ Notice of Motion and Motion
for Temporary Restraining Order and Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof [Doc. 5]. Having considered the submissions, the relevant case law, the oral argument of the parties, and otherwise being fully advised in the premises, the Court grants Plaintiffs’ motion in part, in that it grants Plaintiffs’ motion for a temporary restraining order.
The decision to grant a temporary restraining order is within the Court’s discretion. See Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003). To obtain a temporary restraining order “the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the injunction is in the public interest.” Attorney Gen. of Oklahoma v.
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Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (internal quotation marks and citation omitted).
The Court will first address the likelihood of success on the merits of Plaintiffs’ APA and NEPA claims challenging the grants of inspection and FSIS Directive 6130.1. In this case, Plaintiffs’ challenge agency action under the APA. Under the APA, the Court reviews final agency action to determine whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Although the Court’s review must be thorough, the standard of review is very deferential to the agency. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156, 1165 (10th Cir. 2012)
Beginning with FSIS Directive 6130.1, the Court concludes that the Directive constitutes final agency action as defined by the APA. The Directive appears to be FSIS’s final statement regarding drug residue testing in equines. Additionally, the Directive is agency action from which rights and obligation are determined and legal consequences flow, since FSIS relied on the Directive in issuing the grants of inspection to Valley Meat and Responsible Transportation. Moreover, violations of the residue testing standards may result in a regulatory enforcement action.
The Court also concludes that the Directive is a legally relevant cause of Plaintiffs’ alleged environmental harm. FSIS adopted the Directive in response to concerns regarding the potential presence in slaughtered horses of chemical residues from drugs not previously approved for use in food animals. FSIS specifically incorporated the
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Directive into each grant of inspection and the Court is not persuaded that the Directive played no role or that it plays an insignificant role in the agency’s decision to issue the grants of inspection. FSIS issued the grants of inspection to Valley Meat and Responsible Transportation, in relevant part, because it concluded that the Directive was sufficient to protect the public health and safety from the dangers posed by these drugs. Therefore, the Court finds that the evidence of causation is sufficient.
The Court next addresses whether the Directive constitutes “major Federal actions significantly affecting the quality of the human environment” under NEPA. Under 40 C.F.R. § 1508(b)(2) “major federal action” includes the “[a]doption of formal plans . . . upon which future agency action will be based.” See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) (holding that the approval of a land use plan promulgated by the Bureau of land management constitutes “major federal action” under NEPA). FSIS Directive 6130.1 appears to be a formal plan or policy regarding drug residue testing in equines. Additionally, future agency action will be and indeed was based on the Directive. As previously explained, the grants of inspection were based, in relevant part, on the existence of FSIS Directive 6130.1 and future drug residue testing of equines at Valley Meat and Responsible Transportation will be based on the standards set forth in the policy.
There is no evidence in the record that FSIS relied on the categorical exclusion in adopting FSIS Directive 6130.1. Our Tenth Circuit has held that “categorical exclusions cannot be summoned as post-hoc justifications for an agency’s decision.” Utah Envtl.
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Congress v. Russell, 518 F.3d 817, 825 n.4 (10th Cir. 2008). Accordingly, the categorical exclusion is inapplicable to the Directive.
Based on the foregoing, the Court concludes that Plaintiffs have established a substantial likelihood of success on the merits of their APA and NEPA claim challenging Directive 6130.1.
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.
Having determined that Plaintiffs have established a substantial likelihood of success on the merits of their claims, the Court next addresses the issue of irreparable harm. The Court acknowledges the concerns expressed in the pleadings and oral argument as to the welfare of horses, but the Court nonetheless must emphasize that
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NEPA is a statute that protects the physical environment and, therefore, the harm with which we are concerned is the risk of harm to the physical environment. Plaintiffs must establish that irreparable harm to the physical environment is likely in the absence of a temporary restraining order. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). “Purely speculative harm will not suffice, but [a] plaintiff who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative and will be held to have satisfied this burden.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011) (internal quotation marks and citation omitted).
Plaintiffs have submitted evidence of environmental harm at commercial horse slaughter facilities that operated in the United States prior to the defunding of inspectors in fiscal year 2006. [See. Doc. 13] This environmental harm included blood spills, improper disposal of animal parts and carcasses, noxious odors, and the leeching of horse effluent into the local water supply and waterways. [Id.] These harms are compounded by the presence of chemical residues in equines that are not otherwise present in other amenable species subject to slaughter. Evidence has been proffered that a majority of horses subject to slaughter are administered a variety of pharmaceutical drugs not approved for use in food animals, the effects of which could adversely effect the physical environment. The Court concludes that Plaintiffs have fulfilled their burden to prove that environmental harm is likely to occur in the absence of the issuance of a temporary restraining order.
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Turning to the balance of the harms, the Court recognizes that Valley Meat and Responsible Transportation will suffer significant economic harm if they are prohibited from operating during the pendency of the present litigation. However, the Court concludes that the environmental harms posed by commercial horse slaughter without adequate NEPA review outweigh the legitimately incurred costs to defendants resulting from a temporary restraining order.
Finally, the Court concludes that the issuance of a temporary restraining order is not adverse to the public interest. “[T]he public has an undeniable interest in the [government’s] compliance with NEPA’s environmental review requirements and in the informed decision-making that NEPA is designed to promote.” Colorado Wild Inc. v. U.S. Forest Service, 523 F.Supp.2d 1213, 1223 (D. Colo. 2007). The Court recognizes that the public also has an interest in the enforcement of the Federal Meat Inspection Act and its implementing regulations, but concludes that this interest is outweighed by the risk of environmental harms posed by the commencement of commercial horse slaughter in the absence of NEPA review.
For the foregoing reasons, the Court concludes that Plaintiffs are entitled to a temporary restraining order as follows:
IT IS THEREFORE ORDERED that Plaintiffs’ Notice of Motion and Motion for Temporary Restraining Order and Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof [Doc. 5] is GRANTED IN PART.
IT IS FURTHER ORDERED that the Federal Defendants are enjoined from Page6of 7
dispatching inspectors to the horse slaughterhouse facilities operated by Intervenor- Defendants Valley Meat and Responsible Transportation until further order of the Court.
IT IS FURTHER ORDERED that the Federal Defendants are ordered to suspend or withhold the provision of meat inspection services to Valley Meat and Responsible Transportation until further order of the Court.
IT IS FURTHER ORDERED that Defendants Valley Meat and Responsible Transportation are enjoined from commercial horse slaughter operations until further order of the Court.
IT IS FURTHER ORDERED that the Court will set a hearing on Plaintiffs’ request for a preliminary injunction within thirty (30) days.
IT IS FURTHER ORDERED that the Court will direct the Federal Defendants to expedite the production of the full administrative record.
IT IS FURTHER ORDERED that the matter of a security bond under Fed. R. Civ. P. 65(c) is hereby referred to the Honorable Robert Hayes Scott, United States Magistrate Judge, and Judge Scott is requested to convene a hearing (telephonic or otherwise) with the parties on Monday, August 5, 2013, to address this matter.
SO ORDERED this 2nd day of August, 2013, in Albuquerque, New Mexico.
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________________________ M. CHRISTINA ARMIJO United States District Judge
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Categories: Horse News, Horse Slaughter
Straight from the Horse's Heart 
Hallelujah!
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YAAAAAAAAAAAAAAAAAA HOOOOOOOOOOOOOOOOO, Hoirse Slaughter is inhumane and will never be the answer !!!!!!!!! So many better solutions available !!!!!!!! # 1 AQHA , must be stopped in their over breeding !!!!!! If there is a problem this is where to start !!!!!!!!!!!!!!!!!!!!! Giant Kudos to all who understand and see that our Horses are the biggest part of survival for all !!!!! THEY ARE A GIFT OF LOVE AND LIFE !!!!!!!
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Let’s Hope and Pray in the next 30 days this gets stopped for good!!!@!!@!@!@!@
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Hi Robyn…I agree…now we still have the battle at Palomino Valley Center in Reno NV that is more importan because this is where it starts….talked to someone from Canada there are horse slaughterhouses up there and the horses come from the United States…but not enough advocate groups to stop this there…
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Dunn kills me! He is so full of, ‘I’ll pull it out of my butt and say whatever sounds good and suits me on this day and time,’ kinda garbage talk! The fact that he says things like his client was approached about serving a need and decided to help is precious! I did notice that mumm was the word on the “arson attempt” however. I can’t wait until the insurance reports come back on that one. It also sounds like obviously Dunn is representing at least one of the Missouri plants as well. Regardless of all that, it was definitely a good day for our horses and all the hard work behind this ruling. I know that the people on the front lines are crucial to our cause. But, I have to say, for all of us supporting those efforts with our tireless calling, faxing, writing, and emailing, I’m so very proud and humbled at the same time to be in such great company with so many intelligent and caring people. We truly are the horse warriors and it was with that spirit and effort that I believe made all this possible! Onward!!!!
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Onward is right Susan, I too am very proud of us ALL…. It is a huge victory, huge, although we have a ways to go I want to enjoy this happy feeling, that just warms me….. But be darn sure on Monday I will be calling ALL the REP’s on each committee where Safe Act sits, again…. This only gives us more strength to fight even harder, I used to think like so many in this country why bother stand up for what you think is wrong they do what ever they want anyway, BUT NO I was wrong it does make a HUGE difference we ALL have to stand up and be heard once and for all, we will be persistent and fight damn hard till we are heard….. KEEP FIGHTING ( horse warriors) I like that Susan… 🙂
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I don’t understand this bond deal, what’sit mean?
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The plaintiffs have to put up a bond against possible economic losses to the dregs of society before they can go forward. Tell me what that Valley Meats little slaughterhouse could make 5 million in the six months that their mouthpiece is estimating. Ya right. What’s he going to be able to murder maybe 200 horses a week? Dream on Dunn. Will be interesting to see if judge allows that amount of bond.
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Bond, shmond….10 bucks is even too much
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The bond hearing will be interesting, for sure. $10 million?
First, where are the customers? EU won’t buy from US, the drug tracking rules have kicked in. USDA has not even bothered to apply to EU for certification.
And what about those pesky microchips and drug passports for every horse over 6 months, and everybody having to pay a vet call for banamine.. ? ain’t happening.
Second, the infamous Dallas Crown 2006 Federal Corporate tax return. Form 1120.
Oh, the horse advocates have words to say about that, and with good reason!
The horse slaughter tax attorneys must have thought they got the last laugh using offshore accounting tricks to lower profit and taxes here, and shift profit overseas.
“Transfer pricing” accounting let Dallas Crown pay just $5 in Federal income tax, for the privilege of doing business on US soil.
I used to think that $5 was a jab at the American people, and I confess as a CPA I was cranky about it.
Until now.
With the bond hearing Monday, that tax return with the pathetic, low income makes you want to hug yourself (to borrow from the late great Roger Ebert.)
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🙂
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I’m so proud of the Mescalero Tribe for standing up!! I am apache and we LOVE our horses.
Navajos are sheep farmers, ancient enemies of the horse people, if they don’t want their horses they should just shoot them, it would be better.
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Thanks to the Apache’s for being true horse people!
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Navajos could have done something to stem the problem before it apparently got as out of hand as it did. I love their estimates I believe I’ve seen anywhere from 25 thou up to 75 thou wandering the entire Navajo lands. Must be using blm counting techniques. That is much like the horse owner knowing they have too many horses and not enough income and then going out and bringing in 30 more horses. Take some responsibility folks.
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not to mention they are lying about how many are out there! Thank you Diana, the Blackfeet feel the same way as the Apache, I think someone is paying off the Navajos.
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thats exactly what I thought…good way to make money…
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I think they believe if they quote what Native Americans say (or exaggerate of make it up) that they have more credibility. Maybe some have, but I’ll bet many more are against horse slaughter because horses meant a lot in Native culture too, and I am happy the Mescalero Apache and others have spoken out!
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I Agree wholeheartedly With You. God Bless Your People..
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Dunn never saw this coming and out of left Field? Hilarious. A good day today for man and beast.
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🙂
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WHY cant this get on the Naional News….CBS,NBC,ABC,CNN,FOX……if we all contatcted the national news like I did the local news in Reno…the private citizens have no clue what is going on with these horses and I think if they knew they would be outraged!!!!!…People here in Reno were and thats why BLM is holding ths worksop on AUgust 6th….and my freind Robyn went to a rally in Denver…people dont know…and they need to be aware of this…we can post our little hearts out but the public needs to know about this on a national level…..
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I totally agree with you Nancy.
R.T. Fitch, May we print this off & send or would that get us into trouble?
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This is what the other side is sending out !!!!!!!!
News from the dark side>>>>>>>>>>>>>>>>>…
Dear Arlene Orlando,
We have just received word that Judge Christina Armijo of the 10th District Court in New Mexico has issued her decision in regards to the HSUS request for a Temporary Restraining Order (TRO) that prevents USDA from sending inspectors to horse processing facilities. This TRO will be in force for a short term while a decision on a Preliminary Injunction, which would be in force until the underlying lawsuit is settled, will be decided upon in about a month.
The fight goes on. While disappointing, this is really just the very first skirmish in what will inevitably be a long haul. We have proven already by our progress to this point that the horse industry will not lay down and die. We will not quit. We will continue to fight to our dying breath to preserve our way of life, to protect our horses, to protect our lands, and our freedoms.
A bond hearing will be held in the next week or two which will establish the financial loss that the plants will stand to lose if we are not allowed to operate. HSUS will be required to put up that bond. Bonds that they will forfeit if we ultimately prevail.
We will also be preparing to appeal this Judge’s decision, as her determination today was made on grounds that attorneys believe have no basis in law. It is also my understanding that there are, in fact, Supreme Court decisions to the contrary which this Judge chose to ignore today.
In the meantime, if there was ever a need for the horse industry, the states, the tribes, the counties, and everyone who cares about the continued existence of a horse industry in any form in this country to come together, and to support this effort with dollars and dedication…that time is now!
Do not weaken. Nobody ever said this was going to be easy. We have proved time after time that a few stalwart souls who are willing to stand up and tell the truth can make a difference. Don’t stop!
Thank you to all of you who have stepped up your personal efforts to communicate with political leaders and the public. A special tip of the hat and hearty appreciation goes out to the tribal leaders who have elevated an opposing view to the animal rights rhetoric that is, finally, catching the attention of the media. Hopefully those heartfelt and common sense messages will start percolating through the national conversation surrounding this issue.
As always, if you have comments or questions, please contact me at sue.wallis@ieqbassn.org.
sue’s sig
Sue Wallis is a rancher and Wyoming State Representative who is the U.S. Chairman of the International Equine Business Association.
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Yeah Nutty SUE had that written up and set to go 5 mins after the judge ruled! SHe must have forgotten to take her medication again! They got it socked to them by an honest, forthright judge who saw through the garbage-I think the only long haul that Sue out to be making is to the garbage heap!
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Great news and a huge thank you to all those who have made this possible! Even though it may be temporary, the facts and truth are unfolding. With that said, let’s hope those making the final decisions help bring an end to horse slaughter, once and for all.
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Long way to go folks.
A start, but a very long way to go as the SAFE Act MUST be passed to provide permanent legal relief for our equines and human consumers of tainted, unqualified horseflesh.
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