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Second Civil Suit From Oklahoma, West Virginia Racing Authorities Questions Constitutionality Of HISA

The Horseracing Safety and Integrity Act (HISA) is facing a second legal challenge after Oklahoma Attorney General Mike Hunter announced this week he is filing a federal lawsuit calling into question the act's constitutionality. The suit, filed in U.S. District Court for the Eastern Division of Kentucky, includes a number of plaintiffs, including the states of Oklahoma and West Virginia and their racing commissions, the U.S. Trotting Association and Pennsylvania-based Hanover Shoe Farm, as well as the Oklahoma Quarter Horse Association and a number of track ownership entities in Oklahoma. Defendants include the United States, the Federal Trade Commission, and a number of individuals working for the FTC and the HISA nominating committee.

This suit, much like one filed in March by the National Horsemen's Benevolent and Protective Association and a number of its state affiliates, questions the ability of HISA to delegate regulation to a private group while not making it accountable to a government organization. The suit questions the new authority's relationship to the FTC, which critics say can only approve or deny new rules, but has no substantive input on their construction.

The Oklahoma suit also objects to the funding mechanism that has been laid out for the new authority.

“After creating this vast new federal regulatory structure and delegating it to a private corporation, Congress disclaimed any responsibility for funding the Authority itself,” reads an excerpt from the suit. “Instead, it forced the funding responsibility onto the states, imposing on them the choice of either funding the Authority with state funds or, if a state refuses, collecting fees directly from racing industry participants in that state while punishing the state by banning it from collecting similar taxes or fees itself.”

The suit seeks a declaration that HISA is unconstitutional and wants the court to stop its implementation. The suit also seeks “nominal damages.”

Read the complaint here.

The Jockey Club, which was a major player in pushing HISA forward, has previously said it believes the act is on solid ground in terms of its constitutionality.

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USTA To Join Upcoming Lawsuit Challenging Horseracing Integrity And Safety Act

By a vote of 35-8, the United States Trotting Association Board of Directors on Friday, April 16, elected to join an upcoming federal lawsuit challenging the constitutionality of the Horseracing Integrity & Safety Act (HISA), which was passed by Congress and signed into law last year. The USTA repeatedly has expressed reservations about the legislation's legality, in particular whether or not it violates the Constitution's non-delegation doctrine and anti-commandeering principle.

In a statement made in September 2020, USTA President Russell Williams said, “The constitutional concerns raised by HISA are substantial and pervasive. Those concerns embrace the structure and powers of the regulatory body at the heart of the bill and extend even to the bill's more peripheral provisions.”

On Friday, Williams further elucidated his concerns to the USTA Board in prepared remarks in which he also assured the board that the Association will assume no portion of the cost of district court proceedings.

If allowed to stand, HISA would remove from the states the power to regulate racing medication and safety matters and give them to a private entity, the newly created Horseracing Integrity & Safety Authority (Authority). HISA is scheduled to go into effect no later than July 1, 2022. The Federal Trade Commission will oversee a rule-making process that eventually will establish and approve the medication control and racetrack safety programs to be enforced by the Authority. The new law stipulates that HADA initially will be funded by loans taken out by the Authority, which will then be repaid by fees assessed to the state racing commissions. No price tag has yet been attached, however, nor has it been determined which segments of the industry will pay for HISA.

The legal action that the USTA will be joining is expected to be filed shortly by the State of Oklahoma and Hanover Shoe Farms. That follows a similar claim against HISA brought last month by the National Horsemen's Benevolent & Protective Association (NHBPA) and 11 of its affiliated state organizations. That suit, filed in the Northern District Court of Texas, alleges the law creates a private organization and gives it federal authority, which it claims is unconstitutional.

An attendance and voting summary appear below. A “yes' vote reflects support for joining the lawsuit, while a “no” designation indicates opposition to doing so.

Present: C. Antonacci, I. Axelrod, S. Beegle, D. Bianconi, D. Bittle, J. Bluhm, M. Breuer-Bertera, B. Brown, J. Cross, G. Ducharme, Chairman J. Faraldo, M. Ford, J. Frasure, R. Gillock, K. Greenfield, J. Gregory, T. Haight, S. Hedington, J. Hensley, S. Hoovler, J. Ingrassia, M. Kimelman, S. Lilly, Vice Chairman M. Loewe, D. Marean, J. Matarazzo, S. McCoy, C. McErlean, R. Miecuna, Treasurer J. Miller, J. Mossbarger, S. Oldford, J. Pennacchio, J. Reynolds, A. Roberts, R. Roland, J. Roth, J. Settlemoir, D. Siegel, D. Spriggs, M. Sweeney, A. Tetrick, M. Torcello, S. Warren, President R. Williams, J. Zambito

Not Present: B. Alexander, D. Ater, L. Calderone, C. Callahan, K. Crawford, B. Kenney, C. Leonard, R. Mackinnon, S. O'Toole, S. Peine, T. Powers, R. Schnittker, J. Stratton, G. Wand

Yes: Axelrod, Bianconi, Beegle, Bittle, Breuer-Bertera, Brown, Cross, Ducharme, Faraldo, Frasure, Gillock, Gregory, Haight, Hedington, Hensley, Hoovler, Ingrassia, Kimelman, Lilly, Loewe, Marean, Matarazzo, McCoy, Miecuna, Miller, Oldford, Pennacchio, Roberts, Roth, Spriggs, Sweeney, Tetrick, Torcello, Williams, Zambito

No: Antonacci, Bluhm, Ford, McErlean, Roland, Settlemoir, Siegel, Warren

*Two votes from directors who were confirmed to be present on the call but experienced technical difficulties in being heard were added to the final tally.

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Pennsylvania Horse Breeders Make Moves To Address Slaughter Pipeline Issues

Continuing to demonstrate its commitment to the health and welfare of thoroughbreds, the Pennsylvania Horse Breeders Association (PHBA) today announced its endorsement of the John Stringer Rainey Safeguard American Food Exports (SAFE) Act.

The SAFE Act, named for the late South Carolina philanthropist and former director of the Thoroughbred Retirement Foundation, is legislation that would permanently end the slaughter of American horses for human consumption in the United States and abroad.

It also amends Title 18 of the U. S. Code by making it illegal to “possess, ship, transport, purchase, sell, deliver, or receive … any horse with the intent that it is to be slaughtered for human consumption,” with penalties that include fines and imprisonment.

Introduced in 2019 by Sens. Bob Menendez, D-N.J., Lindsey Graham, R-S.C., Sheldon Whitehouse, D-R.I., and Susan Collins, R-Maine, the SAFE Act has also garnered the endorsement of several prominent animal welfare groups. The American Society for the Prevention of Cruelty to Animals (ASPCA) and the Humane Society of the United States are among those supporting its passage.

Other prominent groups that have endorsed the SAFE Act include the National Thoroughbred Racing Association, the United States Trotting Association, and the Maryland Horse Council.

“Our bipartisan legislation will help put an end to the cruel and inhumane slaughter of horses while protecting families from toxic horse meat and safeguarding the reputation of the U.S. food industry worldwide,” said Sen. Menendez when the bill was introduced.

In addition to its commitment to the health and safety of Thoroughbreds, aftercare is also a top priority of the PHBA, according to president Greg Newell.

“We are doing everything we can to help place horses who reach the end of their first or second career, whether they have finished racing or breeding,” said Newell. “Our Anti-Slaughter Committee, chaired by Kate Goldenberg, has done a wonderful job addressing what can be done to help our equine athletes.”

PHBA Board member Hank Nothhaft, also a member of the Anti-Slaughter Committee, said that endorsement of the SAFE Act was something the organization wanted to do to be a positive force towards improving the industry. The fact that many unwanted thoroughbred broodmares are found in slaughter pens proved to be a call to action.

“There was unanimous support from the PHBA Board to mitigate the slaughter of broodmares,” said Nothhaft. “Older broodmares, especially, are not attractive candidates for equestrian activities, and thus they are not as easy to rehome as younger horses. This has really pushed us from sitting on the bench towards getting into the fray.”

“The Anti-Slaughter Committee was formed in order to protect our broodmares, stallions, and Pennsylvania-bred racehorses that end up in the slaughter pipeline, or in bad situations,” explained Jennifer Poorman of the PHBA. “What is coming from it is so much more.”

Poorman said that the Committee has a goal to create a broodmare retirement program to address the need of unwanted mares.

“Our hope is to form a non-profit within our organization, to assist our breeders when the time comes when their broodmare can no longer breed,” said Poorman. “We'll be looking to build a network of partner farms willing to assist with retirement from breeding, whether it's a second career or permanent retirement due to physical limitations.

“We're also creating a campaign to educate our breeders about responsible aftercare, along with providing a network of resources for our breeders to turn to at any point they find themselves in need of assistance,” she said.

“No one has been looking out for the broodmares,” said Nothhaft. “There's lots of enthusiasm for this project moving forward.”

Nothhaft said one reason why the SAFE Act hasn't gained traction towards passage since 2019 in Congress is because large agricultural interests fear that anti-slaughter legislation would bring undue attention to their industries, which involve large-scale slaughter of animals for food.

“The SAFE Act is one of three items we are working on,” said Brian Sanfratello, executive secretary of the PHBA. “The others are Pennsylvania-specific anti-slaughter legislation, similar to the SAFE Act, that would make it a misdemeanor for anyone who causes or transports a horse into the slaughter pipeline, as well as a PHBA code of ethics, with sanctions for anyone who is a member or registers horses with our organization and is found to be in violation of the Pennsylvania anti-slaughter measures.”

The PHBA's relationship with legislators in Harrisburg could have a positive impact towards the introduction and passage of a Pennsylvania anti-slaughter bill, said Nothhaft.

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Harness Horsemen Sign Letter Support Horseracing Integrity & Safety Act

Leaders in the harness racing industry have signed a letter supporting the Horseracing Integrity & Safety Act, which was signed into law on Dec. 27, 2020. Meanwhile, the United States Trotting Association has confirmed its opposition to the new law.

The horsemen's letter, first published at Harness Racing Update, reads:

The undersigned are encouraging the Standardbred industry about how best to structure the Horseracing Integrity & Safety Act to be inclusive of Harness Racing's unique needs.

We support the Horseracing Integrity and Safety Act recently passed by Congress and signed into law by President Trump.

We know that there are details about funding and other matters that will have to be worked out in good faith between regulators and members of the horse racing community. And we know that the new law is not perfect. But we believe that the new law is a legitimate and important step in the right direction toward universal medication rules for our sport, increased enforcement of drug rules to make the sport more honest, and a greater public acceptance of horse racing as a safe, humane sport.

We need all of these things to protect our sport's future. And we need to work within the broader racing community to make the law work for us, especially since it requires regulators to consider the “unique characteristics” of each breed. We believe that representatives of the Standardbred industry should work with those who support the new law, and who will be enforcing it, to help establish the rules and policies that will likely govern our sport for years to come.

Signed,

Breeders

Adam Bowden (Diamond Creek); Bruce Trogden (Emerald Highlands); Steve Jones (Cameo Hills); George Segal (Brittany); Mike Gulotta (Deo Volente); Senena & Jeff Esty (Spring Haven); Frank Antonacci (Lindy); Bob Brady (Kentuckiana); Al & Michelle Crawford (Crawford Farms); Ken Jackson (Kentuckiana); Mario Zuanetti (Atlantic Trot); Massimo Bianchi; Margareta W. Kleberg (Menhammer St); Tom Hill; Art Zubrod (Brittany); Jim & Gibson Wilhite; Knutsson Trotting; Tristan Sjoberg; Bernie Noren; Al Libfeld; Sam Goldband; Charles & Julie Nash; Jon Wiesman; Pond A Acres; Andrew Cohen (Bays Stable); Leah Cheverie; David Heffering (Tara Hills); Frank Lomangino; Johan Arneng (Brixton Medical); John Donato; Ernny Gerbaulet; Richard Gutnick; Peter Martinson; Robert Mondillo; Victor Zehr; Ed Telle; James Daut; Robert Hechoff; Richard Arnold (Willow Oak); John Schmucker (Black Creek); Dan Baer (South Mountain); John Lengacher; John Bootsman (Boko); Dan Lengacher; Duncan Taylor (Taylor Made); Jeff Ruch (Pinestone); Anders Strom (Courant); Maumee River; Jeff Gural (Allerage); All American Harnessbreds; Mike Andrew; Maurizio & Marina Biasuzzi; John Carver; Joe Mendelson; Jim Glass (Walco); Stephanie Rothaug (Rails End); Jim Avritt Sr (Meadow Creek); Stewart Goldberg (Mini Sinks); Randy & Kim Haines (Cool Winds); Steve & Cindy Stewart (Hunterton); Elmer Miller; Lorne Polger (Polger Holdings)

Trainers and Drivers

Ron Burke; Brian Brown; Virgil Morgan Jr.; Jimmy Takter (Hall Of Fame); Ben Wallace; Casie Coleman; Nifty Norman; Jeff Fout; Ed Lohmeyer; Linda Toscano (Hall Of Fame); Paula Wellwood; Mike Keeling; Jim Campbell; Carter Pinske; Tony Alagna; Donna Lee Ozment; Joe Holloway (Hall Of Fame); Per Engblom; Tom Cancelliere; Enos Weaver; Donald Dancer; Blair Burgess (Hall Of Fame); Brad Mcninch; Kevin Mcdermott; Jean Wellwood; Bob Stewart; Murray Brethour; Jim Arledge; Greg Peck; Kelly O'Donnell; Tim Lane; Scott Mogan; Brett Bittle; Scott Zeron

Owners

Mark Weaver; Howard Taylor; Herb Liverman; John Fodera; Murray Brown; Brad Grant; Fred Hertrick III; Carl Howard; Martin Sternberg; Bo Lofvander; Doug Millard; Ernie Gaskin; Robert Burgess; Fred Hudson; Bryan Montgomery (Regency Ins.); Frank Chick; Myron & Stephanie Bell (Riverview); Harvey Nagner (Radio Racing); Marc Guilfoil (Ky. Racing Comm.); Richard Young; Martti Ala Seppala; Harvey Fried; Robert Lindstrom; Perry Soderberg; Tommy B Anderson; Jack Remey ( P. Judge); Lynn Jones; Randy Manges; Bob Marks; Joyce & Richard Mcclelland; Bill Vit (Cool Cat); Craig Henderson; Ray Baynes; Gary Corona; Allan Schott; Howard Perlmutter; Gorden Banks; Dan Kazmaier (P. Judge); Bob & Jeanne Stewart; Mark Hanover; Ed Biddle; Kimmo Kempi; Nick Salvi; Mike & Don Robinson; Joe Sbrocco; Virginia Berkner; Steven Wienick; Martha Frank; Robert Leblanc; John Balzer; Geoffrey Dubrowsky; Bill Reepmayer; Frank Cannon; Jason Settlemoir

Vets

Dr. Patty Hogan; Dr. Terry Ruch; Dr. Doug Hutchins; Dr. John Park; Dr. Lynda Rhodes Stewart; Dr. Nathaniel Newton; Dr. Ted Mazorisi

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