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knowledge, training, and experience in the field of horse inspection. He is a doctor of veterinary medicine with 5 years of experience with Tennessee Walking Horse shows and special training as to the Horse Protection Act (Tr. 30, 63). He testified that he had no independent recollection of the inspection, but his recollection was refreshed upon review of his affidavit and APHIS Form 7077 (Tr. 34-35). He stated that the notes from which he prepared his affidavit were prepared within 45 minutes of the inspection (Tr. 115).

Dr. Smith opined that Ebony's Bad Bubba was sored. Dr. Smith determined that due to the symmetry of the horse's reaction to his palpation, the soring was not accidental. He likewise ruled out developmental changes, such as "contracted heels," as a basis for the horse's reaction to palpation on all sides of the horse's front feet (Tr. 47-50).

Dr. Smith explained the marking system on APHIS Form 7077 (CX 6). He stated that the places where he tested and found painful reaction to palpation were shown as circles (Os) on the front, back, left, and right side views of Ebony's Bad Bubba's front pasterns (the area between the hoof and what looks like an ankle joint on the leg) (Tr. 42-46). As Dr. Smith explained, "[p]alpation consists of taking my thumb and gently pressing on these areas, looking for areas that are painful" (Tr. 42). "[T]he horse, if it's painful, will try to jerk the foot away. That's just a natural pain response." (Tr. 43.) "Every time I pressed on those areas [indicated by circles on APHIS Form 7077 (CX 6)], the horse gave me a withdrawal reflex. Now that's the gentle pressure of my thumb on the horse's pastern" (Tr. 45-46). Dr. Smith was also able to narrate the horse's reaction to palpation upon reviewing the video (Tr. 128-34, 142; RX 2).

While Dr. Smith viewed Ebony's Bad Bubba being led, he observed that the horse was "moving slowly . . . tentatively. . . stabbing into the ground in choppy motions." He made these observations from a distance of approximately 20 feet (Tr. 47, 89, 96, 126).

Respondents argue Drs. Bourgeois and Smith reached their mutual conclusion that Ebony's Bad Bubba was sore based solely upon palpation without evidence that chemical irritants or other mechanical devices were used and therefore their conclusions were flawed (Respondents' Responsive Brief at 3). Respondents further argue the opinions expressed (a) by Dr. Bourgeois, that "this horse was sored with caustic chemicals, overwork in chains, or a combination of both" (CX 7 at 2), and (b) by Dr. Smith, that "this horse was

62 Agric. Dec. 580

sored by mechanical and/or chemical means" (CX 8 at 2), are faulty conclusions without any specific evidence of chemical or physical injury (Respondents' Responsive Brief at 3). Neither Dr. Bourgeois nor Dr. Smith found evidence of: (a) prohibited chemicals that might be associated with chemical burns (Tr. 138-39, 192, 205); (b) violations of the Scar Rule (Tr. 100, 195-96); or (c) inflammation at the sored site (Tr. 106-07, 196, 199). Respondents' cross-examinations of Dr. Bourgeois and of Dr. Smith establish that certain tests, which might have tended to rebut the presumption of soreness, were not conducted, to wit, (a) they did not measure the horse's temperature, (b) they did not measure the horse's pulse, and (c) they did not measure the horse's respiration rate (Tr. 106-10, 200-01). Both doctors observed, but did not measure, the horse's heel-to-toe measurements and pad measurements (Tr. 111-12, 214). Neither Dr. Bourgeois nor Dr. Smith requested that Ebony's Bad Bubba be trotted while they observed (Tr. 110-11, 200).

A horse shall be presumed to be sore if it manifests abnormal sensitivity in both of its forelimbs or both of its hindlimbs.4 The Secretary of Agriculture's policy has been that palpation alone is a reliable method to determine soring. The method of using palpation alone to determine whether a horse is sore has not been found suspect by the United States Court of Appeals for the Sixth Circuit Court or the United States Court of Appeals for the District of Columbia Circuit. The United States Court of Appeals for the Sixth Circuit has held that a finding of soreness based upon the results of palpation alone is sufficient to invoke the rebuttable presumption that a horse is sore."

Respondents argue even if I were to find that Complainant has met the threshold test of proving Ebony's Bad Bubba was sore, then the testimony of B.A. Dorsey and Dr. Kimmons rebut that threshold finding (Respondents' Responsive Brief at 5). I respectfully must disagree. Even though it appears to me that Ebony's Bad Bubba reacted to quick and rough handling by one or both DQPS just prior to the Animal and Plant Health Inspection Service veterinary medical officers' inspections, and even though it appears to me that Ebony's Bad Bubba's peculiar gait and stance were characteristic of him and

15 U.S.C. § 1825(d)(5).

'Bobo v. United States Dep't of Agric., 52 F.3d 1406, 1413 (6th Cir. 1995).

did not necessarily show reluctance to put weight on his front feet, I rely on the Animal and Plant Health Inspection Service veterinary medical officers' expert ability to distinguish a pain response from other reactions and to identify pain that has been caused by soring.

Respondents may have been unaware that Ebony's Bad Bubba was sore, but they nevertheless are responsible for a violation if the horse was sore, because they each entered him to be shown or exhibited or allowed him to be entered to be shown or exhibited. As the Judicial Officer has observed, "[i]ntent and knowledge are not elements of the violation of section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B)) and rarely is there any proof of a knowing or intentional violation of section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B))." In re Derwood Stewart (Decision as to Derwood Stewart), 60 Agric. Dec. 570, 602 (2001). And also, "it is clear under the 1976 amendments [to the Horse Protection Act] that intent and knowledge are not elements of a violation...." In re Derwood Stewart (Decision as to Derwood Stewart), 60 Agric. Dec. 570, 604 (2001).

Respondents offer alternate theories, other than being sore, as to why Ebony's Bad Bubba reacted upon palpation (Respondents' Responsive Brief at 6-7). Respondents suggest the horse was reacting due to having being handled roughly by one or more examiners. B.A. Dorsey noted that the initial inspection conducted by DQP Robert Flynn included snatching the horse's front leg up and pulling it off to the left. B.A. Dorsey said, "[i]f you remember that tape, you can see where he picked him up, snatched him up, and pulled him off to the left. If he would have just picked him up normal, the horse would have been fine. Right off the bat, he just snatched him up and went to probing on him, and that horse will not take it" (Tr. 453). B.A. Dorsey believed the horse was treated roughly by design (Tr. 453-54).

In watching the videotape, I saw what I believe was quick and rough handling of Ebony's Bad Bubba by the DQPs. It appeared to me that DQP Robert Flynn pulled the horse's front leg not just up and back, but out to the side, in what looked to me to be a painful position (Tr. 453).

B.A. Dorsey said he palpated Ebony's Bad Bubba probably three times before the first DQP inspected him, and Ebony's Bad Bubba was "fine." B.A. Dorsey suggested that the procession of inspections (four inspections) caused Ebony's Bad Bubba to react progressively more agitated as different persons inspected him. The horse had never been inspected that much before (Tr. 431-33, 451-52).

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Respondents suggest that Ebony's Bad Bubba was disturbed by other horses, that he is a stallion and mares were present; consequently, he was nervous. As Dr. Kimmons stated, however, veterinarians typically have the skills to determine whether a horse is moving due to being in pain, for example, reacting because the horse has been touched [palpated], as opposed to just being curious about his environment or just looking around (Tr. 399-400).

The evidence indicates that during the pre-show inspection, Ebony's Bad Bubba was being led on a "tight rein" and that he did not always have a "loose rein" (CX 4; Tr. 222). The implication is that Ebony's Bad Bubba was reluctant to be led. B.A. Dorsey stated that the manner in which Ebony's Bad Bubba moved when being led around the cones was normal for him (Tr. 431-35). I accept as accurate B.A. Dorsey's characterization of Ebony's Bad Bubba's normal movements. Nevertheless, I am persuaded by the evidence presented by the two Animal and Plant Health Inspection Service veterinary medical officers, given their training and experience, that bilateral, reproducible reaction to palpation, found in 16 separate locations, 12 of which they agreed upon, proved Ebony's Bad Bubba was sore on March 22, 2000, when he was entered in the 32nd Annual National Walking Horse Trainers Show.

Respondents request that I consider that because Ebony's Bad Bubba has a lower back end due to his body size and body makeup, he has an unusual stride or gait (Tr. 409-10). B.A. Dorsey describes Ebony's Bad Bubba as having a "deep, really deep behind . . . sort of setting down on his haunches... short stride...." (Tr. 435.) Dr. Kimmons described Ebony's Bad Bubba as "a small horse in stature, in height... has a short back, short rump, somewhat short strided" (Tr. 379). My view of the horse at the beginning of the second day of the hearing confirmed that B.A. Dorsey's and Dr. Kimmons' descriptions of Ebony's Bad Bubba's structure are accurate. It appeared that the horse's gait and stance are somewhat unusual, as B.A. Dorsey and Dr. Kimmons described, but I have no way of knowing whether the horse was sore at the time I viewed him. B.A. Dorsey's and Dr. Kimmons' testimony about Ebony's Bad Bubba's structure and his normal gait, together with my view of the horse, persuade me to give little weight to the DQPS' and the Animal and Plant Health Inspection Service veterinary medical officers' visual observations about the horse's appearance and locomotion. Nevertheless, the palpation evidence still persuades me that

Ebony's Bad Bubba was sore on March 22, 2000.

Ebony's Bad Bubba wore pads on his feet during shows. During Dr. Smith's cross-examination, he admitted that putting 3-inch pads on the horse would probably have altered his gait (Tr. 140-41). Respondents argue that if Drs. Smith and Bourgeois had requested the horse to have been trotted, they could have better determined whether or not Ebony's Bad Bubba was sored (Respondents' Responsive Brief at 5). While that may be true, their failure to have the horse trot does not negate their findings upon palpation.

Dr. Kimmons opined that there was no reason for disqualifying Ebony's Bad Bubba from participation in the 32nd Annual National Walking Horse Trainers Show (Tr. 378). Dr. Kimmons' opinion was derived from his video review (RX 2) of others conducting the pre-show inspection of Ebony's Bad Bubba. Dr. Kimmons stated a horse that is bright, alert, and not sweating indicates to him that the horse is not sore. He agreed that he could not tell from the video if Ebony's Bad Bubba was sweating (Tr. 393). DQP Robert Flynn's examination report states the "horse was hot" (CX 3).

Although I value Dr. Kimmons' testimony, he had no opportunity to inspect Ebony's Bad Bubba on March 22, 2000. His examination of the horse was in April 1998 (Tr. 370). Dr. Kimmons testified he had never seen a walking horse in his practice that had been sored (Tr. 387-88, 391). Even though Dr. Kimmons was able to make observations from his review of the videotape, he agreed that he could give a better professional opinion if he had actually inspected the horse (Tr. 391).

In conclusion, after careful evaluation of the evidence as a whole, I must conclude that Ebony's Bad Bubba was sore when he was entered on March 22, 2000, to be shown or exhibited in the 32nd Annual National Walking Horse Trainers Show. As earlier stated, I rely upon the results of palpation of Ebony's Bad Bubba's front feet by Dr. Lynn P. Bourgeois and Dr. David C. Smith.

Third issue: Did Betty Corlew enter Ebony's Bad Bubba to be shown or exhibited? The evidence is sufficient to find that she did. Betty Corlew was scheduled to be "up" as the rider who was to show Ebony's Bad Bubba at the 32nd Annual National Walking Horse Trainers Show (CX 2; Tr. 479-80). Riding a horse is one of those activities necessary to entering a horse show, each of which constitutes "entering" the horse to be shown or exhibited. These acts of "entering" include clerical entries such as completing the entry form and paying the entry fees, and include presenting the horse for pre-show

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