Like it or not, the views are spread across a quite broad spectrum. Rather than discuss or evaluate the many divergent positions enunciated, let’s simply analyze how recent developments will shape the issue into the near future.

This column first discussed the equine slaughter issue in August of 2006.

At that time, House Resolution 503, a modified version of the American Horse Slaughter Prevention Act first introduced in 2003, was being debated in the United States House of Representatives.

As so modified, H.R. 503 would have prohibited transport of, and trafficking in, horses for the purpose of introduction in the human food chain.

Click Here to read the August 2006 Racing and the Law article.

While the measure easily passed the house on September 7, 2006, the United States Senate failed to vote on the proposed legislation before the 109th Congress came to an end, effectively negating the action of the House.

The prime House sponsors of the Act reintroduced the measure in the 110th Congress on January 17, 2007. The proposal presently has 180 cosponsors.

On that same day, a companion measure was introduced in the United States Senate with 30 cosponsors (S.311).

The measures seek to, “prohibit the shipping, transporting, moving, delivering, receiving, possessing, purchasing, selling, or donation of horses and other equines to be slaughtered for human consumption, and for other purposes."

In the House, the bill presently languishes in the Livestock, Dairy and Poultry Subcommittee. In the Senate, the bill was reported out of Committee without amendment favorably on April 25, 2007.

To date, no floor action has been scheduled.

Ironically, while Congressional action regarding slaughter for the purpose of human consumption is still under consideration, federal court decisions have resulted in a complete cessation of horse slaughter for human consumption in the United States, at least for the time being.

In Texas, home to two of the only three slaughterhouses in the United States that processed horse meat for human food (the third is in Illinois), a portion of the state’s Agriculture Code promulgated in 1949 prohibited the processing or sale of horse meat for human consumption.

A 2002 opinion of the Texas Attorney General clarified the applicability of the measure to the two entities in question.

Thereafter, the slaughterhouses sued to permanently enjoin (stop) the local District Attorney from prosecuting them under the regulation.

The Federal District Court for the Northern District of Texas granted the injunction. On January 19, 2007, however, a three judge panel of the Fifth Circuit United States Court of Appeals (covering Texas) reversed the District Court.

The tone for the appellate decision is established in its first two sentences, “The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality.”

The Circuit Court rejected all the arguments of the slaughterhouses, specifically holding that the Texas law had not been repealed, was not preempted (superceded) by federal food inspection laws, and was not in violation of the Commerce Clause contained in the U.S. Constitution.

A week after the ruling, two major American airlines announced that they would no longer ship horse meat from Texas.

In March, the 19 judges of the Fifth Circuit Court of Appeals refused to entertain a petition by the slaughterhouses for en banc (full court) review, effectively affirming the decision of the three judge panel and closing the operations of the Texas plants which remain closed to this day.

On March 28, 2007, the United States District Court for the District of Columbia invalidated a United States Department of Agriculture regulation that circumvented Congressional intent by permitting slaughterhouses to pay the salaries of meat inspectors when funding for them was eliminated by Congress.

By finding that the “Fee for Service” program established by the USDA was illegally promulgated, slaughterhouses were rendered unable to function, as the required meat inspectors were not present.

The third and last American slaughterhouse recently met a fate similar to its Texas counterparts.

In May, Illinois Governor Rod Blagojevich signed into law a ban on all import, export, possession and slaughter of horses destined for human consumption.

The measure had passed both houses of the state legislature by comfortable margins.

On July 5th, the Federal District Court for the Northern District of Illinois ruled that the state’s ban was a constitutional exercise of the state’s police power.

Then, on September 21st, a three judge panel of the Seventh Circuit United States Court of Appeals affirmed the District Court’s ruling, and vacated all previously issued injunctions. The third and last slaughterhouse in the United States was placed out of business.

Do these rulings effectively end once and for all the slaughter of domestic horses for the purpose of providing steaks in European and Pacific Rim restaurants? While the present answer is clearly “no,” the options for the slaughterhouses are rapidly dwindling:

Appeals:

The appellate rights of the plants are not yet fully exhausted.

First, the ruling of the District Court in Washington, D.C. invalidating the USDA “Fee for Service” regulation can be appealed to the U.S. Court of Appeals.

The slaughterhouse in Illinois may ask for en banc (full court) review of the decision in their case, though it appears that the Texas slaughterhouses have not attempted to persuade the United States Supreme Court to hear their appeal.

At each of these levels, the entities could ask for temporary injunctive relief permitting them to operate while decisions of these higher courts are pending.

Still, permission to appeal where required in the higher federal courts is rarely granted.

A significant constitutional issue must be raised and, even then, the court might contemplate the issue and decide to affirm the lower court.

Obtaining a temporary injunction permitting the plant(s) to remain operational pending appeal is not guaranteed. In sum, the slaughterhouses are true longshots to come out ahead in the federal judicial system.

Other states:

Assuming any of the three entities can find a judicial or political way to get the USDA meat inspectors back in the plants, they could attempt to reestablish their operations in states where the legislatures are receptive to their business.

Then again, Kentucky, New Jersey, New York and a growing number of states have bills pending in their respective legislatures similar to those already promulgated in Texas, Illinois, California, Oklahoma and other jurisdictions banning equine and certain other types of slaughter for human consumption.

It would appear quite risky to expend significant capital to establish a plant, only to have the plant’s new home state, or the federal government, impose anti-slaughter legislation.

Direct Transport:

At this time, it is conceivable that an entity could purchase unwanted horses in a state where no transport ban exists and ship the animals directly to places like Mexico and Canada where equine slaughter plants are operating.

In its decision, the Fifth Circuit Court of Appeals pointed out that one of the Texas slaughterhouses owns a controlling interest in a Mexican slaughter plant.

The parent company of the Illinois plant struck a deal over the summer to utilize two cattle slaughter operations in Canada to process horses.

In the absence of a transport ban in a certain state, and given the present lack of a federal ban on interstate transport, a chartered plane could bring the horses directly to a foreign plant, forgoing land transportation through “ban” states.

It’s probably happening as you read this article.

What’s the deal with slaughter?

The old Yogi Berra-ism: “It ain’t over till it’s over” aptly describes the present circumstances.

Remember, humanely accomplished slaughter of horses is always legal, so long as the resultant meat is not destined for a dinner plate.

No matter what stance you take regarding the issue of equine slaughter for human consumption, there is still ample time and opportunity for your voice to be heard.

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Chris E. Wittstruck, an attorney and Standardbred owner, is the founder and coordinator of the Racehorse Ownership Institute at Hofstra University, New York and a charter member of the Albany Law School Racing and Gaming Law Network.

By Chris E. Wittstruck, Esq.