Rescue v. Vilsack

Decision Date01 November 2013
Docket NumberNo. 1:13-CV-00639-MCA-RHS,1:13-CV-00639-MCA-RHS
PartiesFRONT RANGE EQUINE RESCUE, et al. Plaintiffs, v. TOM VILSACK, Secretary U.S. Department of Agriculture, et al. Defendants.
CourtU.S. District Court — District of New Mexico

This case involves applications for grants of inspection for federal meat inspection services for commercial horse slaughter operations at Valley Meat Company, LLC (Valley Meat), Responsible Transportation, LLC (Responsible Transportation), and Rains Natural Meat. The Federal Meat Inspection Act (FMIA), 21 U.S.C. § 601 et seq., regulates the inspection of meat and meat food products. The Food Safety Inspection Service (FSIS), as the delegate of the United States Department of Agriculture (USDA), is the agency responsible for conducting inspections and issuing grants of inspection to such facilities. The grants of inspection allow for facilities such as Valley Meat, Responsible Transportation, and Rains Natural Meats to engage in commercial slaughtering of horses intended for human consumption. Plaintiffs seek to have the Court permanently enjoin Valley Meat, Responsible Transportation, Rains Natural Meats, and the USDA from performing house slaughter inspections or utilizing a June 28, 2013 FSISDirective until the USDA has satisfied its obligations under the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321 et seq.

This matter is before the Court on Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief. [Doc. 54] Consistent with Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994), the Court has processed Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief [Doc. 54] as an appeal. [See Doc. 137] Having considered the submissions, the Administrative Record, the relevant case law, and otherwise being fully advised in the premises, the Court affirms the agency's decision.


The FMIA governs the slaughter of "amenable species," including horses, see 21 U.S.C. § 601(w), and requires that all amenable species be examined and inspected "before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce . . . ," 21 U.S.C. § 603(a). The FMIA also requires "a post mortem examination and inspection of the carcasses and parts thereof of all amenable species to be prepared at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in any State, Territory or the District of Columbia as articles of commerce which are capable of use as human food . . .." 21 U.S.C. § 604. The FMIA prohibits the slaughter or preparation of "cattle, sheep, swine, goats, horses, mules, or other equines . . . which are capable of use as human food at anyestablishment preparing any such article for commerce, except in compliance with the requirements of this chapter." 21 U.S.C. § 610(a).

For fiscal years 2006 through 2011, Congress prohibited the use of federal funds to "pay the salaries or expenses of personnel to inspect horses under section 3 of the Federal Meat Inspection Act (21 U.S.C. Sec. 603) or under the guidelines issued under section 903 the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. [§] 1901 note; Public Law [No.] 104-127)." Pub. L. No. 109-97, § 794 (2005); see also Pub. L. 110-1161, div. A, § 741(1) (2007); Pub. L. No. 111-80, div. A, tit. VII, § 744 (2009). As a consequence, horse slaughter in the United States ceased during this time period. However, the prohibition was not enacted for fiscal years 2012 or 2013. Because there is federal funding to pay the salaries and expenses of horse slaughter inspectors, commercial horse slaughtering may once again be carried out lawfully in the United States.

The USDA has received "[a]t least six applications for horse slaughtering inspections in five states . . . since Congress appropriated funding for inspections." [Doc. 54 at 3] Valley Meat, a slaughter facility located in Roswell, New Mexico, submitted an application dated December 13, 2011, to add equines to its preexisting grant of inspection. However, federal regulations require the slaughter of "horses, mules, or other equines" to be "done in establishments separate from any establishment in which cattle, sheep, swine, or goats are slaughtered or their products are prepared." 9 C.F.R. § 305.2(b). On March 2, 2012, Valley Meat submitted an amended application seeking "to modify its grant of inspection to receive inspection services for the commercial slaughterof horses, mules, and other equines." [Doc. 66-2 at 2] On June 28, 2013, the Food Safety Inspection Service (FSIS) issued a decisional memorandum granting Valley Meat's modified application. [AR 2467]

Responsible Transportation, a facility located in Sigourney, Iowa, filed an application dated December 13, 2012, for a grant of inspection for equines. [Doc. 22-5 at 3] On July 1, 2013, FSIS issued a decisional memorandum granting Responsible Transportation's application. [AR 3282]

Rains Natural Meats, a facility located in Gallatin, Missouri, submitted an application dated January 15, 2013, for a grant of inspection for equines. [Doc. 201-1 at 2] Rains Natural Meat's application has been reviewed, a decisional memorandum granting Rains Natural Meat's application, and FSIS is in a position to issue a grant of inspection pending the resolution of this action. [Doc. 201-1 at 2; Doc. 154]

The three other establishments that have submitted applications for grants of inspection for equines are: American Beef Company/Unified Equine, LLC in Rockville Missouri, Oklahoma Meat Company in Washington, Oklahoma, and Trail South Meat Processing Company in Woodbury, Tennessee. [Doc. 54 at 3] None of these three companies have "actively pursued completion of the grant process after the first submission of their applications to FSIS." [Doc. 66-1 at 5]

The grants of inspection issued to Valley Meat and Responsible Transportation are conditional in nature and shall not "exceed 90 days, during which period the establishment must validate its HACCP [Hazard Analysis and Critical Control Point]plan." 9 C.F.R. § 304.3(b); see 9 C.F.R. §§ 417.2 and 417.4 (discussing HACCP plans). After the successful validation of a HACCP plan, the conditional grants of inspection become permanent.

On June 28, 2013, FSIS issued FSIS Directive 6130.1 (the Directive) regarding "Ante-Mortem, Postmortem Inspection of Equines and Documentation of Inspection Tasks." [Doc. 22-3 at 2]

This directive provides instructions to inspection program personnel (IPP) on how to perform ante-mortem inspection of equines before slaughter and post mortem inspection of equine carcasses and parts after slaughter. Additionally, this directive instructs Food Safety and Inspection Service (FSIS) Public Health Veterinarians (PHVs) making ante-mortem and post-mortem dispositions of equines how to perform residue testing, verify humane handling, verify marking of inspected equine products, and document results using the Public Health Inspection (PHIS) for equine when available.

[Id.] In the Directive, FSIS "recognizes that most equines presented for slaughter will likely not have been raised for human consumption" and that, therefore, there are "concerns regarding the potential presence of chemical residues from drugs not previously approved for use in all food animals including equine." [Id. at 7] In addition to following pre-existing residue testing policies, IPP are instructed to "conduct random residue testing of normal-appearing" horses at "at least the same rate as for show livestock." [Id. at 8] Thus, "IPP are to randomly select, on the slaughter floor from normal-appearing equine[s], "[a] minimum of 4 animals if there are more than 100 animals in the lot." [Id.]

On July 2, 2013, Plaintiffs Front Range Equine Rescue, the Humane Society of the United States, Marin Humane Society, Horses for Life Foundation, Return to Freedom, Ramona Cordova, Krystle Smith, Cassie Gross, Deborah Trahan, and Barbara Sink (collectively, "Plaintiffs") filed their Complaint for Declaratory and Injunctive Relief in the United States District Court for the Northern District of California. [Doc. 1] In their complaint, Plaintiffs allege that Defendants, Tom Vilsack, Secretary of the USDA, Elizabeth A. Hagen, USDA Under Secretary for Food Safety, and Alfred V. Almanza, USDA Administrator for FSIS (collectively, "Federal Defendants") "are proceeding with the inspection of horses under the [FMIA] without compliance with their federally mandated environmental review obligations." [Doc. 1 at 2; see also Doc. 54 at 2] Specifically, Plaintiffs allege that the Federal Defendants violated the NEPA and the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), (C)), and (D), when it issued grants of inspection for horse slaughter and "adopt[ed] and implement[ed] a new residue testing plan applicable to all horse slaughter plants throughout the nation that may be authorized to operate by Defendants" without first preparing an environmental impact statement (EIS) or environmental assessment (EA) in accordance with the requirements of NEPA and its implementing regulations. [Doc. 1 at 3] As a remedy, Plaintiffs seek a declaratory judgment setting aside the grants of inspection and drug residue testing policy as "arbitrary and capricious, and without observance of procedure required by law" and a preliminary and permanent injunction enjoining Federal Defendants from "granting or conditionally granting any applications for inspection of horse slaughter facilities," or"implementing the new drug residue testing plan for horse slaughterhouses nationwide, without performance of adequate NEPA review." [Doc. 1 at 35-36] On July 2, 2013, Plaintiffs also filed a motion for a temporary restraining order and preliminary injunction...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT