The Horsemen's Benevolent and Protective Association (HBPA) chapters at both tracks supported the diminished schedules based on available purse funds and projected horse populations.

Right now the placeholders are 158 dates for Charles Town and 121 for Mountaineer.

But the exact number of programs will ultimately be contingent on the outcome of several overlapping federal lawsuits that have to do with the legality of the Horseracing Integrity and Safety Act (HISA).

In July of 2022, the states of West Virginia and Louisiana won a preliminary injunction that has kept the HISA rules from being implemented in those two states until their lawsuit challenging the constitutionality of HISA gets decided in full.

Then in September of 2023, the judge handling that case ordered it to be “administratively terminated” until the United States Fifth Circuit Court of Appeals made a ruling in a separate (but related) suit in which the National HBPA is also alleging that HISA is unconstitutional.

Oral arguments in the HBPA vs. HISA case were heard Oct. 4 but no Fifth Circuit decision has been issued yet.

WVRC executive director Joe Moore explained during the Dec. 13 meeting that if HISA were to be deemed legal nationwide and/or the court's injunction barring implementation in West Virginia got lifted, both tracks would need to recalculate how much purse money was available and how many racing dates those funds could cover.

That's because Charles Town and Mountaineer would be subject to HISA assessments for safety oversight and drug testing services that they currently don't pay because of the injunction that grants them an exception.

According to HISA's 2024 budget, West Virginia's assessment for next year is $4,448,269 (Charles Town $3,281,367; Mountaineer $1,166,902).

Moore said that “if HISA were to become effective in West Virginia, I suspect Charles Town and the horsemen would consider reducing their race days by a number to ensure that there were purse monies available after the [HISA] assessments were calculated for them.”

Charles Town's director of racing, Charlie McIntosh, concurred.

“If HISA were to come back into effect, we'd have to sit down and evaluate” funding options, McIntosh said.

Mountaineer gate | Coady Photography

No representative from Mountaineer spoke on the track's behalf during the meeting.

The two tracks handled their dates reduction requests differently. Charles Town asked for and received 158 dates but left the door open to come back to the commission for a further reduction request if necessary.

Mountaineer took the opposite approach, asking for and receiving the commission's approval for two dates contingencies so the track wouldn't have to come back a second time to request another trim if HISA gets legalized in the state.

So the WVRC approved 121 dates for Mountaineer, with Moore explaining that “if feasible and [if West Virginia continues to] remain exempt from HISA, their number of live race days would increase to 128.”

Moore said Mountaineer's season would run Apr. 28-Dec. 4 under the first contingency, with the meet extending through Dec. 11 if the second plan got utilized.

Charles Town's 2024 schedule, according to the track's website, will consist of four- and three-date weeks nearly year-round, with breaks Aug. 25-Sept. 11 and Dec. 15-31.

Charles Town's 158 dates for 2024 continues a downward trend. The track was awarded 164 dates in 2023 and 179 in 2022.

Unless Mountaineer ends up running the bumped-up 128 dates, its 121-date allotment also represents a decrease, from 124 dates in 2023 and 130 dates in 2022.

(All dates cited above are based on dates as originally assigned by the commission, and do not reflect any in-season program losses that might have occurred because of weather cancellations.)

Even in years when the costs of HISA assessments have not been in play, the awarding of race dates in West Virginia has been a somewhat confusing several-step process. A state statute requires Charles Town to apply for 220 programs every year, and Mountaineer is required to apply for 210 dates. But those quotas haven't been reached for quite some time.

What has ended up happening in recent seasons is that after the initial approvals of those mandated 220 and 210 dates every November by the WVRC, both venues have subsequently come back before the commission to ask for reductions that reflect what each track and its HBPA representatives think is a workable schedule.

The dates reduction votes were unanimous Dec. 13, with WVRC chairman Ken Lowe Jr. and commissioner J.B. Akers voting in the affirmative, while commissioner Tony Figaretti was listed as being absent from the meeting because of a travel conflict.

The post West Virginia Trims Dates For ’24, Exact Schedules Hinge On Outcome of HISA Legality appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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“He was wrong, but I guess he let his anger get the best of him, and he hit the horse in the face,” O'Brien told TDN.

O'Brien added that he and the other two Mountaineer stewards–Maureen Andrews and Phil Heidenreich–won't be revisiting the penalty, because they believe the punishment fits the violation.

“The horse was acting up after he got off, which is no excuse, but that's what happened,” O'Brien said.

Leon, in a separate interview Sept. 22, denied he hit the horse in the face after dismounting from it. But he did admit that he was “frustrated,” and that he struck the horse “in the mouth” earlier in a workout while still on horseback in an effort to keep it from careening through the outside fence after it bolted.

Specific information about the horse's identity and condition were not available at deadline for this story.

TDN first reported Leon's fine on Sept. 21. At the time of publication, details about the incident were scant. The stewards' ruling, dated Sept. 18, didn't even mention that a whip was involved.

That initial news story caught the attention of TDN readers, and it quickly cycled to the top of the most-read articles list. Within 24 hours of publication, it drew 19 reader comments, which skewed 18-1 against Leon's actions, with a number of the commenters suggesting that the penalty should have been stiffer.

One reader who phoned TDN directly was Justin Jensen, a former jockey who now owns, trains, and exercises horses at Mountaineer. Jensen said he had witnessed Leon's actions, and was one of the witnesses who reported what happened to the Mountaineer stewards.

Jensen said his motivation for wanting his side of the story told was because “A hundred-dollar fine isn't acceptable. The stewards are not doing what they should be doing by throwing the book at him a little bit more.”

Leon, Jensen, and O'Brien essentially told TDN the same version of what occurred during the botched workout. It's what happened after the horse got pulled up that Leon disputed.

“I'm at the three-eighths pole galloping in a set, and Jose Leon worked up the rail, worked past us, and his horse bolted to the outside,” Jensen said. “Now to his credit, he stayed on, and I thought for a second that horse was going through the outside rail. And he corrected the horse by hitting it in the face.”

O'Brien corroborated that explanation: “Other witnesses said they don't even know how he stayed on the horse, and the horse was acting up bad,” the steward said.

“I showed him the whip,” said Leon, who has been a licensed jockey for five years. “I did hit him on the bit; just tried to correct him. The stewards told me that was okay, because they know if I'm in a dangerous [situation], I really have to do something to correct the horse. I hit the horse on the mouth. It wasn't on the face.”

Jensen said that at that point, he couldn't really blame Leon for his actions.

“You're in a dangerous spot. He reached out and smacked the horse in the face. Not the end of the world, okay?” Jensen said.

But what happened afterward troubled Jensen.

“So now he gets the horse back down on the rail,” Jensen continued. “They finish the workout, and I'm galloping right behind him. We pull up. I'm maybe 30, 40 yards away from him. Now the problem is done. All he had to do was turn that horse around and jog it home. And because he's got a bad attitude, and he always has a temper, he jumped off that horse, and as he jumped off that horse, he grabbed the right rein with his left hand, and he reached back with his right hand, and he whipped that horse in the face. I don't know if he hit him in the eye, but he whipped him hard across the face.”

Jensen continued: “Now I yelled at him, and I said, 'Jose, that's enough.' I said, 'Calm down, get that horse back to the barn safely, and just take a breath.' We rode away from him. He continued to get a little bit more mad at the horse, but he did not whip him in the face again. But he did whip him in the face the first time, 100 percent.”

Jensen said by that time, outrider Theresa Akers had come over to assist. She would also testify at Leon's hearing.

“If we had some patrons from the casino standing up on the turn, watching horses train in the morning, which they do quite often, and they witness a jockey whip a horse in the face like that, that makes our business look worse,” Jensen said. “And right now, horse racing is under the microscope.”

Asked directly by TDN if he dismounted from the horse and struck him, Leon said no.

“I came up to the seven-eighths pole [and] just put my stick up, and I started, like, holding the bridle, working with him,” Leon said. “The outrider, she was saying I hit the horse in the face, that the horse had an [injured] eye, and I explained to the stewards the horse did not have any damage, that the horse was fine, and everything was okay. The horse is the type of horse that is a crazy horse. He's super hyper.”

“I was frustrated, but I did not do things on purpose,” Leon said. “I know it's something serious. I will pay the fine, because I know if I lose [an appeal], I don't want to get in trouble for something that I know that I did, but it wasn't on purpose to hurt the horse. I did it to take care of myself. I know with all the [new] rules that are going on, [an incident like this] can affect my career.”

Jensen, in telling his version of events, also referenced the slew of new national anti-whip rules that are in effect. He said he can't square Leon getting fined only $100 for what happened when other jockeys who violate crop rules for being a few strikes over the in-race limit get hit with multi-day suspensions or fines that are much higher than that.

Jensen also gave an example of something that happened to him last year at Mountaineer: He got into a disagreement with the track superintendent and swore at him. He said he was asked to explain his actions before the same board of stewards and admitted that what he said was not appropriate.

“Now those were words,” Jensen said. “How did I get a $400 fine for saying [expletive], but this guy gets a $100 fine for whipping a horse in the face?”

Jensen said he is well aware that speaking out against alleged horse abuse can have repercussions for those within the industry who choose to report it, especially at a small track like Mountaineer. He said there were others who witnessed Leon's actions on that morning but chose not to come forward, and that he understands their reasons for not doing so.

“But I'm okay with you putting my name on this,” Jensen said. “I'm probably going to be dragged through the mud with the stewards. I foresee them dragging me in and giving me a hard time over this. But you know what? There's a difference between right and wrong, and I'm trying to stand up for the right right now.”

The post Mountaineer Steward Defends $100 Fine for Jockey Who Whipped Horse in Face appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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According to a Mountaineer stewards' ruling, “Mr. Leon was caught striking a horse across the face on Sunday, Sept. 10, 2023, during morning exercising.”

The ruling didn't specify whether Leon struck the horse with his whip or his hand.

Joe Moore, the executive director of the West Virginia Racing Commission, wrote in an email that he did not have any details about the incident beyond what the Mountaineer stewards stated in the ruling.

Leon, 24, represented himself at a Sept. 18 stewards' hearing, according to the ruling. Moore told TDN Leon has not appealed, but is still within his 20-day window to do so.

Leon, who has been a licensed jockey since 2018, has compiled a 38-for-304 record so far this year, riding in West Virginia, Ohio, Arizona, and in the mid-Atlantic region.

The post Mountaineer Jockey Fined $100 for Striking Horse in Face appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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However, U.S. District Court (Western District of Louisiana) Chief Judge Terry Doughty wrote in his Sept. 14 ruling that, “This Order shall not be considered a dismissal or disposition of this matter,” and that he was halting the case while the Fifth Circuit decision played out “without prejudice to the right of the parties to reopen the proceedings.”

This means the plaintiffs (the two states are joined by the Louisiana racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, West Virginia's racing commission, and five individuals regulated as “covered persons” under HISA) and the defendants (the HISA Authority, the Federal Trade Commission [FTC], plus overseers of both entities) must now await the decision–likely to be issued months from now–that will result from the Fifth Circuit oral arguments scheduled Oct. 4.

In 2 1/2 weeks, the National HBPA and 12 of its affiliates will be trying to prove claims that the 2022 rewrite of the HISA law remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

The HISA Authority and the FTC will go into those same arguments backed by a lower court's opinion issued in May that ruled HISA is indeed constitutional, because “Congress cured the unconstitutional aspects of HISA's original approach.”

It's also on the judicial record that the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of HISA back in March.

One day prior to Judge Doughty's ruling, Magistrate Judge David Ayo wrote in a report that recommended staying the Louisiana case that the multiple, overlapping anti-HISA lawsuits currently swirling in the court system are clogging federal dockets.

“After an exhaustive review of the landscape of suits challenging the Act, this Court concludes that [an amended complaint the plaintiffs had filed] is the result of deliberate strategy” that equated to “an abuse of procedure and an impermissible use of judicial resources,” Judge Ayo wrote in his Sept. 13 report.

The original lawsuit in this case was filed June 29, 2022, alleging that HISA violates the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations.

The post Judge Halts Anti-HISA Suit in Louisiana Pending Outcome of HBPA Case in U.S. Appeals Court appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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The awarding of race dates in West Virginia is a somewhat confusing several-step process bound by a state statute that requires Charles Town to apply for 220 programs every year. The state's other Thoroughbred track, Mountaineer Park, is required to apply for 210 dates.

But what has ended up happening in recent seasons is that after the initial approvals of 220 and 210 dates by the West Virginia Racing Commission (WVRC), both venues have subsequently come back before the commission to ask for reductions that reflect what each track and its respective Horsemen's Benevolent and Protective Association (HBPA) think is a workable schedule based on available purse funds.

At the Nov. 14 WVRC meeting, Mountaineer was granted additional approval to reduce its schedule to 124 dates in 2023, a six-program cutback from the 130 that the track was awarded in 2022.

Also at that Nov. 14 meeting, WVRC executive director Joe Moore noted that Charles Town was approved for 179 programs in 2022.

But at the Dec. 20 meeting, Moore said that Charles Town ended up racing just 173 dates because of cancellations during the 2022 season just completed Dec. 17.

So prior to the 3-0 unanimous vote by commissioners Tuesday, Charles Town's revised 164-date request was framed by Moore as a nine-date reduction based on the actual number of programs.

But as per the 179-date allotment he had previously stated in November, it's a parsing of 15 cards.

“The request comes with the agreement [by] the racetrack and the HBPA that they will meet in July to revisit their live race schedule and their available purse monies to assess whether there is a possibility of adding any days towards the end of the calendar year,” Moore said.

The post Charles Town Requests 15 Fewer Dates in ’23 appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Speaking about the loss of race dates, WVRC executive director Joe Moore said, “I'm told that is as a result of the Horse Racing Integrity Authority (HISA) and Horseracing Integrity and Welfare Unit (HIWU) assessments recently received by the commission and the racetracks for calendar year 2023.”

Mountaineer executives were offered the opportunity to elaborate on that reasoning and the dates cutback, but chose not to speak during the Nov. 14 meeting.

The HISA and HIWU assessments were separately discussed at length during a different portion of the meeting. TDN covered that topic here.

The awarding of race dates in West Virginia is a somewhat confusing two-step process bound by a state statute that requires Mountaineer to apply for 210 annual dates and Charles Town Races to apply for 220.

But in actuality, those quotas haven't been met “in a number of years” because of the logistical difficulties of filling that many cards, Moore said.

Moore explained that to comply with the law, tracks must first apply for the statutory minimum, then come back to the commission with a reduction request. After a 10-day public commentary period, if each track's horsemen's organization and tellers' union do not object, the WVRC can vote to reduce the dates.

So Mountaineer did both steps at Monday's meeting. Charles Town only applied for the 220 minimum, and will presumably be back before the board at a future meeting to ask for its traditional reduction.

Moore said Charles Town, which races year-round except for a brief break in December and January, had asked for 179 dates in 2022, but will likely end up racing only 175 by year's end because cancellations.

Charles Town executives were also offered an opportunity to outline the track's 2023 dates strategy, but declined to speak.

Chairman Ken Lowe Jr. and commissioner J.B. Akers voted in the affirmative on the two statutory requests and Mountaineer's reduction request. Commissioner Tony Figaretti voted “no” on all three counts.

“I'm not happy with it,” Figaretti said. “We're always deducting days, deducting days. It's too hard for me to accept that.”

The post Mountaineer To Race Six Fewer Days in 2023 appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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It took some polite but persistent questioning by commissioner J.B. Akers to get an answer to that question. But Alex Waldrop, the recently retired National Thoroughbred Racing Association chief executive who now works as an advisor to HIWU, eventually conceded that “the burden right now is on HIWU.”

Akers had wanted assurance that West Virginia's racing wouldn't be subject to a shutdown if neither the commission nor the tracks could fill the federally required positions related to the coming of HIWU, an overarching national concern that has ramifications beyond just Mountaineer Park and Charles Town Races.

“I have a hard time believing that we're alone on this issue,” Akers said. “If it's only a few jurisdictions that's one thing. But if it's a substantial number of jurisdictions [that can't meet the staffing statute], I think that frames the issue a little differently.”

HIWU is the entity that will operate HISA's anti-doping program. HISA creates the rules HIWU will enforce.

In October, the WVRC, like racing commissions other states, was notified of the details of the combined agreements that HISA and HIWU want racing jurisdictions to either accept or decline prior to the Jan. 1 implementation date. Commissions and/or tracks have already been assessed costs for the 2023 operations of the two programs; if states opt-in to the agreements and pay some of the costs up front, their assessments will be reduced.

Joe Moore, the WVRC's executive director, said his state is already operating under a modified 2022 agreement with HISA on its racetrack safety program. He explained that he would like the proposed combined 2023 HISA and HIWU agreements split into two separate ones because the safety standards are a “much smoother agreement to extend [but] I believe the HIWU agreement is going to be a much heavier lift.”

At a time when the hiring marketplace is fierce nationwide and Mountaineer and Charles Town already find it difficult to obtain veterinary help, Moore stated it would be next to impossible for West Virginia to go out and hire at least 12 new people to work in drug testing oversight, which according to the incoming HIWU rules must consist of at least one veterinarian, a veterinary technician, a test barn supervisor, and five assistants at each track.

“I will tell you that neither of West Virginia's two test barns are anywhere close to this minimum,” Moore said.

“At Charles Town we have a vet supervisor who conducts our blood draw, two full-time assistants for urine collections, and a part-time assistant. Charles Town has one vet that does the pre-race and nightly card at the same time. We do not have a dedicated vet for the test barn, and we do not have a licensed vet tech,” Moore said.

“At Mountaineer Park, you have a licensed vet tech and three [per-diem] vet assistants for urine collection. Mountaineer Park has one vet for pre-race and nightly racing and no vet dedicated to the test barn,” Moore said.

Moore said one idea could be for the WVRC to staff the positions as best as it can, then ask HIWU to “fill in the gaps” while rebating the state for the positions West Virginia pays to cover.

“Or HIWU may take the stance of, 'You don't have enough [staff]. We're going to take over the whole operation,'” Moore postulated.

Another option, Moore said, would be to see if HIWU would be amenable to compromising on some of the required test barn positions by reducing or eliminating them.

Waldrop said that third option isn't likely to happen: “I don't think there is much, if any, leeway in [eliminating] the individual positions that need to be filled on a daily basis at West Virginia racetracks.”

But Waldrop did add that, “I do think that a cooperative effort between West Virginia and HIWU is the best way to go forward here. But I can't deliver that today. I can't promise that will be the case.”

Akers asked Moore if it would even be possible for the WVRC to post the jobs, interview candidates, perform background checks, and hire and train them prior to the Jan. 1, 2023, deadline.

Moore replied, “Commissioner, this couldn't be done by January of 2028. The racing commission does not have the funding to hire 12 additional personnel on a full-time basis.”

Willing and available veterinarians, Moore added, “don't exist out there right now.”

Waldrop explained that HISA and HIWU could assist with hiring by tapping into the resources of Drug Free Sport International, which has been hired to build HISA's independent Anti-Doping and Medication Control enforcement agency.

But while technicians and specimen collectors can be more easily trained to do their jobs, Waldrop admitted that, “The veterinary aspects are the most challenging. And I can tell you that HIWU is well aware of that, and they've been aware of that for some time. That's probably the biggest hurdle that they see in the near term. And they certainly intend to be prepared on Jan. 1.”

Waldrop continued: “Vets are hard to come by anywhere in the country right now, though, so I'm not going to sit here and say West Virginia is entirely unique. Equine vets [who are] familiar with the racetrack, that's a challenge. But it's one that HIWU has accepted, and they are confident that they can meet it.”

Akers then again prompted Waldrop to clarify who'd be held responsible if that didn't happen.

“Is it going to be HIWU's position, if, you know, that the state of West Virginia is out of compliance and it's our fault this didn't happen?” Akers asked. “Or is HIWU going to take responsibility and say that [the WVRC] made reasonable attempts and couldn't find the personnel to hire?  Or is our racing jurisdiction going to be allegedly out of compliance with the statutory scheme, and therefore threatened by you with regard to whether we're even allowed to race or not?”

Waldrop replied that, “At this point in time, 'Who's out of compliance?' is an issue we could debate. But I think from the industry standpoint, it's HIWU's intention to be up and running and prepared to go Jan. 1.”

Waldrop continued: “One of the challenges you have in West Virginia [is] that you don't have the budgetary resources to hire these individuals…and I respect [and] understand that. HIWU doesn't have that challenge. HIWU has the financial resources to hire these people. So it's one of those hurdles that can be overcome because HIWU has that ability…. HIWU is part of Drug Free Sport, which is an international organization which has massive resources, financial as well as personnel, that they can draw upon.”

Akers said that it was his understanding that HIWU, HISA and Drug Free Sport don't currently have any regulatory veterinarians on staff.

“You're correct,” Waldrop answered. “You're focusing on exactly the right point, which is the challenge here is reg vets. The other positions we will provide. The reg vets are the challenge.”

But Akers still hadn't received a direct answer to his compliance question, so he respectfully but emphatically asked a third time if West Virginia was at risk of having its racing shut down over not having the required HIWU hires in place.

“I don't think that last scenario is going to occur, sir,” Waldrop replied. “HIWU will work with HISA, and do their level best to keep racing going in West Virginia without interruption to provide the staff that's necessary…So I would say to you that the burden right now is on HIWU to be prepared on Jan. 1.”

Akers said he appreciated that answer, adding that while he understood that Waldrop isn't a HIWU executive, he did want the minutes of the meeting to reflect that the HIWU advisor had articulated that “the burden should be presently on HIWU to make sure that these requirements are implemented by Jan. 1 to the extent that those are their mandates.”

In light of a long list of questions that Akers said he still had about entering into a voluntary HIWU agreement for 2023, Waldrop offered to set up a conference meeting in about two weeks between HIWU's executive director and general counsel and any interested West Virginia racing stakeholders and commission members.

The commission ended up taking no action on Monday on either opting into or out of the HISA and HIWU agreements for 2023.

The post Who Bears Compliance Responsibility if WV Can’t Hire HIWU Vets? appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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According to Jami Poole, president of the Mountaineer Horseman's Benevolent and Protective Association (MHBPA), there is often no veterinarian on the facility's grounds during training hours.

“I'm not pleased about the vet situation here in the morning time,” said Poole, who estimated that training is conducted at Mountaineer for about 50% of the time without a veterinarian on the grounds to ensure that any potentially stricken horse is attended to immediately.

Poole declined to answer when asked if the veterinary shortage at Mountaineer has led to any instances of horses' welfare put in jeopardy.

One unnamed source, however–who asked to remain anonymous for fear of professional reprisal–said that the lack of a veterinarian on the grounds during training has led to one instance, which occurred about two months ago, of an injured horse remaining unattended for a prolonged period of time.

“The horse broke down at around 8:30 in the morning,” said the source. The nearest veterinarian was around 30 minutes away, according to two other sources.

According to Lori Bohenko, the West Virginia Racing Commission's (WVRC) regulatory veterinarian at Mountaineer, there have been two fatalities during morning training at Mountaineer this year. The other, Bohenko said, was a sudden death for which she was present on the track.

The veterinary shortage during training, said Poole, has been ongoing since the start of the year. Curiously, neither the WVRC nor HISA requires a racing association like Mountaineer to maintain a veterinarian presence during training hours.

“Many tracks exceed the current HISA regulations to provide veterinary coverage whenever horses are on the racetrack, and HISA strongly encourages the few that do not provide this care to re-examine their practices and do everything possible to ensure veterinary care is available at all times,” wrote HISA director of racetrack safety Ann McGovern in emailed answers to a series of questions.

McGovern added that the HISA Racetrack Safety representative who visited Mountaineer was working with track management “to provide support and help bring Mountaineer into compliance with HISA's Racetrack Safety standards.”

A dearth of veterinarians at Mountaineer raises equine welfare concerns in other ways, according to those on the grounds.

Aside from no association veterinarians at Mountaineer, Poole said that there was only one full-time attending veterinarian for the entire backstretch–what sources estimate to be typically between 400 and 600 horses.

There should, said Poole, be at least two full-time attending veterinarians for the backstretch. “Good if we had four,” he said, adding that a veterinarian from Texas has expressed interest in working at Mountaineer next year. “I hope she doesn't change her mind,” he said.

Furthermore, the lone regulatory veterinarian who conducts pre-race examinations is sometimes late to the facility due to conflicting work commitments, Poole said. This has occasionally led to pre-race examinations being conducted in the paddock, immediately before a race, he said.

“It's happened probably three times,” said Poole, adding that the sheer workload at Mountaineer was too large for just one regulatory veterinarian. “We couldn't do without her, so you've got to work around her schedule, too,” said Poole, about Bohenko.

The WVRC's other regulatory veterinarian for Mountaineer, Jon Day, retired this past May.

Poole said that he has repeatedly alerted the WVRC, Mountaineer track management and HISA to the veterinary shortage at the track.

The WVRC executive director Joe Moore, did not dispute Poole's claims. “The Racing Commission is aware of the shortage of racetrack veterinarians, not only in WV, but across the country,” wrote Moore, highlighting an industry-wide problem hitting smaller tracks like Turf Paradise especially hard.

When asked what steps the WVRC has taken to correct the veterinary shortage at Mountaineer, Moore wrote that the commission has increased the rate of pay for regulatory veterinarians in recent years.

However, when it comes to private attending veterinarians on the backside, they are there “at the request/contract of the Mountaineer Horsemen,” wrote Moore.

When asked about the track's veterinary shortage, Jim Colvin, Mountaineer's director of racing, wrote, “You will have to address the veterinarian questions to Joe Moore from the WV Racing Commission since Mountaineer has no vets that work for us or are employed by us.”

Colvin failed to answer follow-up questions about whether Mountaineer has attempted to hire association veterinarians to assist the commission's regulatory team and to cover holes during training. Colvin also failed to respond to questions about the recent visit by a HISA representative.

When asked the same question, Moore wrote that commission management was not involved with the HISA representative's visit to Mountaineer Park. “I'm certain he spoke with Racing Commission staff while onsite. However, I have no further details about said conversations.”

HISA's McGovern left the door open to the new federal organization stepping in to fill the veterinary holes at Mountaineer.

“Should HISA determine that safety is compromised at a covered racetrack, HISA has the authority to place a vet at the racetrack, at the racetrack's expense,” she wrote. “HISA has compensated Regulatory and Association veterinarians to enforce HISA regulations. Those expenses are billed back to the racetrack.”

McGovern wrote that HISA “recognizes the national shortage of Equine veterinarians and has had internal discussions about programs to incentivize veterinary students to consider Equine medicine.”

She added, however, “those plans are longer term and do not address the immediate needs.”

The post HISA Visits Mountaineer During Chronic Vet Shortage at Track appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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The defendants, who consist of the HISA Authority, the Federal Trade Commission (FTC), and board members and overseers of both entities, have allegedly violated the Fourth, Seventh and Tenth Amendments to the United States Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations, according to a series of June 29 filings in U.S. District Court (Western District of Louisiana).

“The regulatory power that Congress purported to delegate to HISA is breathtaking in scope, covering virtually all aspects of horseracing,” the complaint states. “HISA claims power to adopt rules governing doping, medication control, and racetrack safety. It claims power to investigate violations of its rules by issuing and enforcing subpoenas. After investigating alleged violations, it claims to then be able to act as judge in its own cases and adjudicate alleged violations of its rules.

“If that's not enough, HISA claims power to bring civil actions in federal court in response to known or anticipated violations of its regulations. And for those it deems guilty of disobeying its commands, HISA claims disciplinary power to issue sanctions up to and including lifetime bans from horseracing, disgorgement of purses, and monetary fines and penalties.

“Since the scope of HISA's purported regulatory authority extends to virtually all activities related to horseracing, it's not surprising that HISA likewise claims authority to regulate nearly all persons associated with the horseracing industry. Specifically, HISA claims power to regulate trainers, owners, breeders, jockeys, racetracks, veterinarians [and] others licensed by a state racing commission, and agents of any of those persons.

“Despite purporting to exercise this breathtakingly broad federal regulatory power over all activities and persons related to horseracing, HISA is unaccountable to any political actor. No federal official can remove the members of HISA's Board of Directors. The Act thus delegates to a private body the full coercive power of the federal government while simultaneously insulating it completely from political accountability,” the complaint states.

The plaintiffs want “expedited consideration” from a federal judge to keep the first phase of HISA's “substantively and procedurally deficient rules” from going into effect July 1.

“Congress's efforts to federalize horseracing regulations through a private entity like HISA suffer from a host of constitutional problems,” the complaint states.

“Just this week, four U.S. Senators wrote to [HISA executives] to question whether the FTC is providing adequate oversight of HISA, whether Congress should extend HISA's statutory deadlines, and why HISA decided to delay implementation of some rules but not others,” the complaint states.

HISA has already gotten two lawsuits dismissed that alleged unconstitutionality, although an appeal is underway in one case and expected in the other. On Mar. 31, a federal judge in Texas threw out a complaint initiated one year ago by the National Horsemen's Benevolent and Protective Association (NHBPA). On June 3, a federal judge in Kentucky tossed a similar suit in which Louisiana and West Virginia were also plaintiffs, ruling that HISA's enforcement powers were indeed lawful.

This time around, the plaintiffs are the state of Louisiana, its racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, the Jockeys' Guild, the state of West Virginia, its racing commission, and five individuals regulated as “covered persons” under the HISA Act.

Lisa Lazarus, the HISA chief executive whose name tops the list of individual defendants, did not respond to a Thursday morning query for comment prior to the breaking-news deadline for this story.

The plaintiffs want a federal court to provide declaratory judgments that assert 1) the FTC exceeded its statutory authority by approving each of the HISA rules; 2) the HISA rules are arbitrary and capricious under the APA; 3) HISA's enforcement rule violates the Fourth and Seventh Amendments, and 4) the HISA rules are procedurally invalid under the APA because the FTC failed to promulgate them through proper notice-and-comment rulemaking procedures.

The suit also asks for declaratory judgment and a permanent injunction finding the HISA rules invalid and setting them aside, plus a temporary restraining order and an injunction prohibiting HISA or the FTC from taking any actions based on the HISA rules currently in place.

HISA's funding is a key issue that comes under question in the lawsuit.

“A private, politically unaccountable entity with breathtaking regulatory power over an entire industry requires significant funding to carry out its work,” the complaint states. “HISA, however, is not funded by Congress. Instead, Congress forced the responsibility of funding HISA onto the States. The Act forces States to choose either to fund HISA with money from the State treasury (or racing commission) or-if a State refuses–HISA intends to assess fees to the racetracks, which will undoubtedly be passed on to participants in that State's racing industry…

“As things stand today, the FTC has finally approved only three sets of regulations from this private, unfunded, politically unaccountable entity known as HISA. Those three sets of final rules cover 1) racetrack safety, 2) HISA enforcement proceedings, and 3) HISA's methods for assessing and collecting funds. All three sets of final rules will wreak havoc on the racing industry within a matter of days. And all three sets must be preliminarily and permanently enjoined because they suffer from fatal flaws under the APA Act or contradict constitutional guarantees,” the complaint states.

The suit alleges that when a first batch of HISA rules got approved in March and April, the FTC provided only a 14-day public comment period, far shorter than the typical 30 or 60 days. The complaint purports that this is an “unlawful pattern,” and that the FTC “ignored commentators who identified that HISA's rules for assessing fees are contrary to law because HISA bases assessments on purse size and racing starts but the Act limits the assessment methodology solely to race starts, with no mention of purse size.”

With specific respect to Louisiana, the suit states that “it is unclear how HISA will collect monies from racetracks and covered persons because Louisiana law makes clear that the Louisiana State Racing Commission must ensure pari-mutuel wagering revenue is distributed in a particular manner-namely, that 'fifty percent of [specific proceeds] shall be distributed by such track licensee as purses' and the remaining fifty percent 'shall be distributed by such track licensee as purses.'”

The complaint states that its “most pressing” concerns have to do with an expected spate of scratches come Friday if  “covered persons” aren't properly registered with HISA.

“At recent meetings, Defendant Lazarus claimed that HISA will attempt to scratch horses associated with covered persons who refuse to register with HISA or otherwise seek to disqualify horses post-race associated with unregistered personnel,” the complaint states.

“If HISA is allowed to enforce this punitive system, it will strip jockeys, owners, trainers, and all individuals involved in the horseracing industry of their economic interests in race purses-which are not set by HISA-and call the integrity of the entire industry into question.”

As far as the Jockeys' Guild is concerned, the “one-size-fits-none crop rule” is a chief beef.

“This is a major change from Louisiana's incoming rule, for instance, which will likewise limit the use of the crop to six overhand strokes but permits the use of underhand strikes at different junctures in a race, which is critical to the integrity of the race and participant safety,” the complaint states.

“Indeed, the FTC and HISA chose not to consider problems with state-specific concerns that were raised during the comment period and instead arbitrarily issued a rule without addressing comments criticizing that rule,” the complaint states. “The FTC's failure to meaningfully respond to these comments on the crop rule makes the rule arbitrary and capricious.”

The Fourth Amendment allegedly comes into play because a HISA rule “subjects covered persons, including the Individual Plaintiffs, to searches and seizures by HISA without prior approval by a judge or magistrate. This constitutes a per se violation of the Fourth Amendment,” the complaint states.

The Seventh Amendment allegations refer to HISA's ability to seek civil penalties from covered persons. “HISA enforcement actions under these rules that successfully obtain civil penalties will deprive aggrieved parties of their property rights and economic interests without providing aggrieved parties the right to a jury trial. The Enforcement Rule thus violates the Seventh Amendment's guarantee of a jury trial,” the complaint states.

The Tenth Amendment, which stipulates that the federal government only has powers that are specifically delegated in the Constitution, isn't directly addressed in the complaint. But the plaintiffs allege a violation of it in their separate request for a restraining order and injunction.

Later Thursday, Doug Daniels DVM, National HPBA President and Chairman of the Board, said, “We agree integrity, safety and uniformity in horse racing are of great importance, but we also believe getting each of these addressed in a lawful and proper manner is of paramount importance. Horsemen and horsewomen from coast to coast as well as United States Senators Grassley, Manchin, Ernst and Kennedy are asking for this implementation to be delayed and thus far it has gone on deaf ears.

“Now it has become necessary to request this court decide if HISA is ready for its roll-out. The participants are clearly saying the answer is 'no'–the implementation and the regulations are not ready as they stand today. We applaud Louisiana Attorney General Jeff Landry and the other plaintiffs who are demanding answers for everyone in the industry.”

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States are facing a May 1 deadline to declare “in or out” middleman status pertaining to the safety portion of the HISA program that will go into effect July 1. This first phase-in of oversight does not include HISA's drug testing and medication control programs, which aren't expected to be up and running until 2023.

“I'm not going to make a decision to say yes to that today,” said WVRC chairman Ken Lowe Jr., adding that he wants feedback from the state attorney general and/or the governor's office on how to proceed on the matter.

Over the course of the past year, Lowe has repeatedly spoken out against HISA, portraying it as a federal statute crafted by elitists within the racing industry whose interests aren't aligned with the realities of small-circuit racing in West Virginia.

But since the input that Lowe wants from West Virginia's state officials is unlikely to materialize in the next four days, the HISA Authority will likely treat the WVRC's in-limbo response to the May 1 opt-in deadline as a “no.”

According to WVRC executive director Joe Moore, “The one real issue here by not agreeing to it, what [the HISA Authority] will do is now pass [responsibility and costs] to each of our tracks, Charles Town and Mountaineer.”

Last week California and Minnesota became the first two state racing commissions to agree to work with HISA by paying their pro-rated portions of costs. They also have to figure out how to use state employees (like stewards) to enforce federal-level safety rules (like whip-use guidelines).

Racing commissions in New Jersey, Maryland and Texas have already said no to HISA, with several citing as a reason that they don't have the statutory ability to make budgetary and spending changes that involve federal or private entities.

West Virginia is also a plaintiff in an active federal lawsuit joined by several other states aiming to get HISA voided for alleged constitutional violations before the Authority even goes into effect.

That case is currently facing a motion to dismiss; it is separate from the federal lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (HBPA) that got thrown out of court several weeks ago.

Charles Town HBPA president Jim Miller told commissioners that HISA was “a great overreach” that amounted to an “abomination.”

But Miller was also cognizant that by not signing off on acting as an intermediary, the WVRC will be essentially passing on the Authority's costs to the horsemen on a per-start basis.

“If [the commission or the tracks] don't pay HISA, we lose our right through the Interstate Horse Racing Act to simulcast, which, of course, is a big issue for us as well,” Miller said.

“We're looking at what revenues we trade one way to go the other way,” Miller continued. “This will be a big burden for both the tracks and a huge burden on horsemen. We definitely cannot afford it at a time when, hay, oats, feed, veterinary; all those costs have gone up dramatically in the past couple months.”

Moore also articulated a concern that opting into the safety part of the Authority's program would bind the WVRC to also go along with the medication and doping controls, too.

“We can't even tell anyone how much this is going to cost,” commissioner J.B. Akers added, alluding to the drug and medication control assessments that would follow.

Akers also questioned “the so-called equitable nature of this assessment,” which he said seemed to be calculated too high for a relatively small state like West Virginia.

Added Moore: “This is a mess whether you agree to do their work for them [via] this voluntary agreement or not. Because whether or not our stewards are carrying out their functions, if here's a violation under their code, the recourse of appeal is not to our stewards at Charles Town or Mountaineer Park. It automatically goes to a HISA-appointed Authority.”

With regard to the costs borne by the horsemen and the tracks, Moore said there could be a possible state legislative solution in the pipeline, but that it would be at least two years before it could be implemented.

Tracks and horsemen having to pay directly “could be avoided in future years should we all agree on some additional revenue stream to the racing commission passed through legislation,” Moore explained.

“We could work together on figuring out a revenue stream that gave the racing commission an amount of money to absorb that assessment that would then come back from the racetracks and the horsemen [in a way that] wouldn't be as sudden and impactful as maybe just a direct assessment,” Moore said.

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