Protection Act.' Dr. St. John's testimony is further discounted because it is based on misinterpretations of "soreness" under the HPA. A review of the transcript shows that Dr. St. John incorrectly interprets soreness to require a horse to have an abnormal gait (and multiple indicia of pain). In fact, Dr. St. John testified that he believed that a lameness exam must be used to detect under the Horse Protection Act.2 (Tr. 229-231). Thus,

soreness

1

AND

Q [MS. MEHTA] "Do you examine Tennessee walking horses or racking horses for soreness in your practice?"

A [DR. ST. JOHN] "No, I don't." (Tr. 240).

2

Q [MS. MEHTA] "When was the last time that you examined a horse for soreness as you were asked to do by Mr. Morrison in this situation?"

A [DR. ST. JOHN] "That was probably the last time. You know, most of my clients in examining these horses, I haven't found any that have sored their horse." (Tr. 245).

AND

[DR. ST. JOHN] "If you called me to ask if this horse is sore. I believe because I have the experience to go out and find a lameness exam, being a little small defect in the navicular bone, and you ask me to try to determine if this horse has been sored or not. I believe I could do it. And the reason I could do it is because. first of all, we'd just go palpate the horse. I'd get him out and lead him and do a lameness exam." (Tr. 243).

Q [MS. MEHTA] "Do you examine Tennessee walking horses or racking horses for soreness in your practice!?"

A [DR. ST. JOHN] "No. I don't. I examine them for signs of lameness and that is where if they have a horse that is off or not showing a particular style of gait, that's where we go to the lameness exam where we incorporate -- we incorporate palpation, we incorporate hoof testing, we incorporate flexion, we incorporate probably watching the horse in motion for a good long time and deciding if this horse gets worse, the furthest he worked or that he works out a condition.

So I could say yes, I do examine horses for soreness but not the type that you all are talking about."

Q "Okay, not the type. Can you tell me --"

(continued...)

53 Agric. Dec. 1327

Dr. St. John's testimony is of limited relevance in determining soreness as defined by the HPA. (Tr. 250-251).

12. Two Government veterinarians, Dr. Hugh Hendricks and Dr. Lowell Dale Wood, examined "Senator's Mr. Big" after the DQP's examination. (CX 1-2). Both veterinarians have extensive experience in the examination of horses for evidence of violations of the Horse Protection Act. (Tr. 56-58, 123-124).

13. Both Dr. Hendricks and Dr. Wood found the horse to experience pain in both front legs in the same areas. Dr. Hendricks observed that the horse would exhibit pain by pulling back its head and the affected limb, shifting of weight, and tightening of abdominal muscles. (CX 1; Tr. 95). Dr. Wood observed that the horse exhibited pain by withdrawal of the affected limb. (CX 2; Tr. 134). These responses were consistent and repeated. (CX 1; Tr. 140).

14. Dr. Hendricks and Dr. Wood conferred after their examinations of the horse and they both agreed that the horse was sore and in violation of the HPA. (CX 1-2; Tr. 67).

15.

Dr. Hendricks and Dr. Wood signed a report of their examination, an APHIS VS Form 19-7 (CX 3), stating that the horse, "Senator's Mr. Big," was sore. The painful areas found were shown in a diagram on the VS Form 19-7. (CX 3; Tr. 64-65, 132).

16. An affidavit by Dr. Hendricks was completed on May 11, 1991, and formally executed and dated May 28, 1991. (CX 1; Tr. 66). Dr. Hendricks testified that, based on the results of his examination and his knowledge and experience, it was his opinion that "Senator's Mr. Big" had evident pain along the anterior surface and also on the medial and lateral surface of both feet and he would have experienced pain on moving. (Tr. 65).

17. The affidavit of Dr. Wood was completed within 48 hours of May 11, 1991, and formally executed on May 30, 1991. (CX 2; Tr. 133-135). Dr. Wood testified that, based on the results of his examination and his knowledge and experience, it was his opinion, premised upon palpation, that "Senator's Mr. Big" would have experienced pain on moving. (Tr. 137).

18. The Government veterinarians who signed the report and affidavits regarding their examinations and diagnoses had no independent recollection

(...continued)

A "Not intentional soreness." (Tr. 240-241).

of the horse, but testified as to their normal protocol followed in their examinations and the preparation of the APHIS VS Form 19-7 (CX 3) and affidavits. (CX 1-2; Tr. 58-59, 125-126). Dr. Hendricks and Dr. Wood testified that they employ techniques to distinguish a pain response to their palpation examination from the behavior of a skittish or overly excited horse. (Tr. 59-61, 77-79, 106, 112, 126-129).

19. Upon his examination of the horse, Dr. Wood found no lesions, breaks in the skin, disturbance of hair, scars, evidence of chemicals or burns, and generally no visible signs of abuse. (Tr. 149-152). Dr. Hendricks stated that there were no lesions or other visual indications of any abuse at all. (Tr. 97). He also stated that there was no inflammation of "Senator's Mr. Big." (Tr. 98).

20.

Dr. Hendricks and Dr. Wood testified that a horse does not have to exhibit problems when walking or moving for it to be diagnosed as sore. (Tr. 61, 86, 129).

Conclusions of Law

1. On May 11, 1991, Respondent Jerry Morrison, in violation of section 5(2)(D) of the Horse Protection Act (15 U.S.C. § 1824(2)(D) (1988)), allowed, as owner, the entry for the purpose of showing or exhibiting "Senator's Mr. Big" as Entry No. 153 in Class No. 20, at the Northport Civitan Horse Show at Tuscaloosa, Alabama, while the horse was sore, as defined in the Horse Protection Act.

2. On May 11, 1991, Respondent Johnny Lewis, in violation of section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B) (1988)), entered for the purpose of showing or exhibiting the horse known as "Senator's Mr. Big" as Entry No. 153 in Class No. 20, at the Northport Civitan Horse Show at Tuscaloosa, Alabama, while the horse was sore, as defined in the Horse Protection Act.

3. The violations warrant the sanctions authorized by section 6(b) and (c) of the Horse Protection Act (15 U.S.C. § 1825(b), (c) (1988)) and contained in the order below.

PERTINENT STATUTORY PROVISIONS

Section 2(3)(D) of the Act (15 U.S.C. § 1821(3)(D)) provides:

As used in this chapter unless the context otherwise requires:

53 Agric. Dec. 1327

(3) that-

The term "sore" when used to describe a horse means

(A) an irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse, (B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse,

(C) any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or

(D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse,

and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such an application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given.

Section 5(2) of the Act (15 U.S.C. § 1824(2)) provides:

The following conduct is prohibited:

(2) The (A) showing or exhibiting, in any horse show or horse exhibition, of any horse which is sore, (B) entering for the purpose of showing or exhibiting in any horse show or horse exhibition, any horse which is sore, (C) selling, auctioning, or offering for sale, in any horse sale or auction, any horse which is sore, and (D) allowing any activity described in clause (A), (B), or (C) respecting a horse which is sore by the owner of such horse.

Section 6(d)(5) of the Act (15 U.S.C. § 1825(d)(5)) provides:

(d)(5) In any civil or criminal action to enforce this chapter or any regulation under this chapter a horse shall be presumed to be a horse which is sore if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs.

Section 6(b) of the Act (15 U.S.C. § 1825(b)) states:

(1) Any person who violates section 1824 of this title shall be liable to the United States for a civil penalty of not more than $2,000 for each violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing before the Secretary with respect to such violation. The amount of such civil penalty shall be assessed by the Secretary by written order. In determining the amount of such penalty, the Secretary shall take into account all factors relevant to such determination, including the nature, circumstances, extent, and gravity of the prohibited conduct and, with respect to the person found to have engaged in such conduct, the degree of culpability, any history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(2) Any person against whom a violation is found and a civil penalty assessed under paragraph (1) of this subsection may obtain review in the court of appeals of the United States for the circuit in which such person resides or has his place of business or in the United States Court of Appeals for the District of Columbia Circuit by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found and such penalty assessed, as provided in section 2112 of title 28. The findings of the Secretary shall be set aside if found to be unsupported by substantial evidence.

(3) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court of appeals has entered final judgement in favor of the Secretary, the Secretary shall refer the matter to the Attorney General, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and