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55 Agric. Dec. 853

first violation of the Horse Protection Act); In re Tracy Renee Hampton, supra (Respondent assessed a $2,000civil penalty and disqualified for 1 year for first violation of the Horse Protection Act); In re Cecil Jordan, supra (Respondent Crawford assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Horse Protection Act); In re Linda Wagner, supra (Respondents assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Horse Protection Act); In re John Allan Callaway, supra (Respondent assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Horse Protection Act); In re Preach Fleming, 40 Agric. Dec. 1521 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983) (Respondent assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Horse Protection Act).

Congress has provided the Department with the tools needed to eliminate the practice of soring Tennessee Walking Horses, but those tools must be used to be effective. In order to achieve the congressional purpose of the Horse Protection Act, it would seem necessary to impose at least the minimum disqualification provisions of the 1976 amendments on any person who violates 15 U.S.C. § 1824. The administrative officials charged with responsibility for achieving the congressional purpose of the Horse Protection Act recommend that Respondent be disqualified for 1 year from showing, exhibiting, or entering any horse, directly or indirectly, through any agent, employee, or other device, and from judging, managing, or otherwise participating in any horse show, horse exhibition, horse sale, or horse auction. (Complainant's Proposal, pp. 22, 28; Complainant's Appeal Petition, p. 26.)

There is a possibility that the circumstances in a particular case might justify a departure from this policy. Since it is clear under the 1976 amendments that intent and knowledge are not elements of a violation, there are few circumstances warranting an exception from this policy, but the facts and circumstances of each case must be examined to determine whether an exception to this policy is warranted. An examination of the record in the instant proceeding does not lead me to believe that an exception from the usual practice of imposing the minimum disqualification period for the first violation of the Horse Protection Act, in addition to the assessment of a civil penalty, is warranted.

For the foregoing reasons, the following Order should be issued.

Order

1. Respondent Glen Edward Cole is assessed a civil penalty of $2,000, which shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to: Tejal Mehta, Office of the General Counsel, United States Department of Agriculture, Room 2014-South Building, Washington, D.C. 20250-1417, within 30 days from the date of service of this Order on Respondent.

2. Respondent Glen Edward Cole is disqualified for 1 year from showing, exhibiting, or entering any horse, directly or indirectly, through any agent, employee, or other device, and from judging, managing, or otherwise participating in any horse show, horse exhibition, horse sale, or horse auction. The provisions of this disqualification order shall become effective on the 30th day after service of this Order on Respondent.

In re: GARY R. EDWARDS, LARRY E. EDWARDS, CARL EDWARDS & SONS STABLES, WILLIAM V. BARKLEY, JR., and KAY BARKLEY. HPA Docket No. 91-0113.

Decision and Order as to Gary R. Edwards, Larry E. Edwards, and Carl Edwards & Sons Stables filed November 5, 1996.

Civil penalty - Disqualification order - Exhibiting a sored horse - Preponderance of the evidence - Statutory presumption – Palpation — Past recollection recorded.

The Judicial Officer reversed the decision by Judge Kane (ALJ) dismissing the Complaint. The Judicial Officer held that Respondent Gary R. Edwards exhibited a horse while the horse was sore, but held that the other Respondents, Larry E. Edwards and Carl Edwards & Sons Stables, did not violate the Horse Protection Act (the owners had earlier consented). Respondent Gary R. Edwards was assessed a civil penalty of $2,000and was disqualified for 5 years from showing, exhibiting, or entering any horse, directly or indirectly, and from managing, judging, or otherwise participating in any horse show, exhibition, sale, or auction. Much more than a preponderance of the evidence supports the findings, which is all that is required. A horse may be found to be sore based upon the professional opinions of veterinarians who relied solely upon palpation of the horse's pasterns. Past recollection recorded made while the events were still fresh in the minds of the witnesses is reliable, probative, and substantial. Bilateral, reproducible pain in response to palpation, standing alone, is sufficient to be considered abnormal sensitivity and thus raises the statutory presumption of a sore horse. The evidence of very extreme pain response upon palpation is also sufficient to make a prima facie case, which supports a finding of a violation of the Horse Protection Act, even in the absence of the presumption. There is no substantial evidence to support the ALJ's conclusion that the horse's abnormal sensitivity was caused by a "stumble" in the show. The Martin case does not help Respondents. Only

55 Agric. Dec. 892

Respondent Gary R. Edwards exhibited Rare Coin; Respondent Larry E. Edwards, a partner, and Carl Edwards & Sons Stables, the partnership, did not violate the Horse Protection Act. Pre-show passage by the DQP is meaningless to the post-show USDA inspection. Respondents' expert who had never examined the horse, but merely analyzed the videotape, given little weight. Respondent who exhibited the horse has no status to direct USDA veterinary staff on the proper method of examination of the horse. USDA and its witnesses are not biased against owners, exhibitors, or trainers of Tennessee Walking Horses. ALJ's Third Initial Decision and Order, like the two before it, are reversed and vacated because the ALJ failed to correct errors as directed by the Judicial Officer. ALJ's two new theories on palpation, that palpation is a rule subject to APA rule making and that palpation lacks a required "scientific" basis, are both rejected. ALJ erred: by giving no or scant credibility to USDA witnesses, by inferring that testimony of additional USDA experts would have been adverse to Complainant, and by assigning unwarranted great weight and credibility to Respondents' witnesses, even after Judicial Officer guidance on this issue. The ALJ's attack on palpation evidence, based upon the Young decision, is refuted by the Judicial Officer's Bennett decision. Respondent was an absolute guarantor that the horse would not be sore when exhibited. The facts and circumstances of this case reveal no basis for an exception to the general policy of imposing the minimum 5-year disqualification on Respondent, in addition to a $2,000 civil penalty.

Colleen A. Carroll, for Complainant.

Peter N. Priamos, Torrance, CA, for Respondents.

Initial decision issued by Paul Kane, Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.

TABLE OF CONTENTS

I.

II.

Page

1

244

7

INTRODUCTION

A. Complaint

B. Chronology

C. Statutes

RESPONDENT GARY R. EDWARDS EXHIBITED RARE COIN
AT THE MONEY TREE CLASSIC HORSE SHOW WHILE THE
HORSE WAS SORE ..

A. Findings of Fact

B. Conclusion of Law
C. Discussion

1.

Complainant's Case

769

10

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Respondents' Case

A Preponderance of the Evidence Supports a Finding
That Rare Coin Was Sore at the Post-Show Inspection at
the Money Tree Classic, on May 30, 1990, in Columbia,
Tennessee

a.

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Rare Coin's "Stumbling" Was Actually Rearing and Bucking, Which Do Nothing to Rebut the Presumption

18

21

.. 22

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III.

THE THIRD INITIAL DECISION AND ORDER IS REVERSED
AND VACATED

66

A. Introduction

66

B. Third IDO Fails to Correct Errors As Listed in JO SRO, and
Commits More Errors

67

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1.

Two New Palpation Theories Advanced in Third IDO
Are Rejected

67

a.

Digital Palpation Need Not Be Subjected to
APA Rule Making

68

Palpation Need Not Have a Scientific Basis .. 71

The Four Major Errors From the Second IDO Are Not
Corrected

78

b.

2.

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