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January 3, 2014
SANTA FE, N.M.A request by New Mexico Attorney General Gary King to prevent a horse slaughter plant from opening is "nothing more than political grandstanding" by an official who is seeking to become the next governor of the Land of Enchantment, A. Blair Dunn, an attorney representing Valley Meat Co. LLC, wrote in court papers.
King, who is running for governor in 2014, has moved in state court to prevent Valley Meat from opening a facility that intends to process horses for human consumption in Asia and Europe.
Matthew Wilson, a state judge who normally hears family law matters, barred the business from opening under a temporary restraining order. A hearing is scheduled for today, Jan. 3 at 1 p.m. on whether the order should be extended.
On Dec. 19, King filed a lawsuit in the First Judicial District against Valley Meat, its owner Ricardo De Los Santos and two related companies, Dairyland Packing, Inc., and Mountain View Packing LLC.
The complaint was filed because Valley Meat said it planned to operate without the required regulatory approval, according to King's office in a news release.
Valley Meat has been accused of repeatedly violating environmental requirements and federal food-safety laws, including dumping "the remains of hundreds of dead and/or slaughtered animals on the grounds of the Slaughterhouse, in what became massive piles of rotting flesh and bones."
Dunn, Valley Meat's attorney, denies that Valley Meat intends to operate unlawfully. The business has been working with the New Mexico Environment Department (NMED) for authority to discharge wastewater into another entity's facility while its application for a renewal of its own groundwater discharge permit remains pending, he said in a phone interview with Food Product Design.
NMED Secretary Ryan Flynn will determine whether to issue a water discharge permit to Valley Meat, although a decision is not expected until at least February, NMED spokesman Jim Winchester said, adding that NMED has not received an application from Valley Meat for a separate "pump and haul permit".
King's lawsuit characterizes Valley Meat's plan as an attempt to circumvent regulations by discharging wastewater to underground permeable tanks, potentially exposing the groundwater to contaminants. The business cannot lawfully discharge wastewater without an NMED-issued permit, the lawsuit contends.
In court papers, Dunn argues Wilson lacks authority to hear King's lawsuit because claims based on the Water Quality Improvement Act (WQA) are under the jurisdiction of the Water Quality Control Commission (WQCC).
"And a party or agency dissatisfied with the decision of the WQCC may only appeal the decision to the New Mexico Court of Appeals," Dunn wrote. "The New Mexico Legislature has made it abundantly clear that jurisdiction over these issues rests only with the WQCC and the Court of Appeals, nowhere in statute or precedential case law does a District Court achieve subject matter jurisdiction over issues of compliance or alleged anticipated violations of the WQA."
In a letter to a state senator, the New Mexico Attorney General's Office previously raised concerns that horses destined for the slaughterhouse might have been treated with drugs that are harmful to humans, rendering the meat adulterated in violation of state and federal laws.
Opponents of horse slaughter, ranging from animal rights groups to King, maintain the practice is inhumane and poses food-safety risks.
"Commercial horse slaughter is a new, untested enterprise that poses health and environmental risks to New Mexicans. Horses in America are not raised to be eaten, and are widely administered drugs that are forbidden for use in food animals," King's office stated in the Dec. 31, 2013, news release.
The state lawsuit alleges Valley Meat's operation would violate the New Mexico Food Act, New Mexico Unfair Practices Act and the WQA and regulations as well as constitute a public nuisance.
In a response filed with the court, Dunn challenged King's conclusions that horse meat is unsafe and declared that even if such meat was adulterated, it would fall under the jurisdiction of the U.S. Department of Agriculture (USDA). "This court lacks subject matter jurisdiction over issues which fall squarely in purview of federal law under the FMIA [Federal Meat Inspection Act] and not under state law," Dunn wrote.
A lawsuit challenging horse slaughter in federal court was dismissed on Nov. 1, 2013. Plaintiffs had argued that USDA's Food Safety and Inspection Service (FSIS) violated the National Environmental Policy Act (NEPA) by issuing grants of inspection and adopting a related equine directive. Christina Armijo, U.S. District Judge, agreed with FSIS that NEPA didn't apply to its granting of inspections because the agency's actions were not discretionary.
The case was appealed and a temporary restraining order (TRO) was initially granted, further delaying Valley Meat's plans. In a ruling last month, the U.S. Court of Appeals for the 10th Circuit lifted the TRO, holding that the Humane Society of the United States (HSUS), Front Range Equine Rescue and other groups challenging horse slaughter failed to meet their burden of proof for an injunction.
Circuit Judges Gregory Phillips and David Ebel found the plaintiffs are not likely to succeed on their appeal and cited a lack of evidence that they would "suffer irreparable harm" if FSIS allows the plants to begin slaughtering horses.
"Reliance upon environmental damage arising out of previous, unrelated, and limited instances of equine slaughter is too speculative and does not show a significant risk to establish irreparable harm," the judges wrote in the Dec. 13, 2013, order.
Plans to Process Horse Meat
Dunn said Valley Meat plans to process 120 horses each day for human consumption mostly in China, Japan, Russia and Europe. American horses already are slaughtered today in Canada and Mexico and being shipped to those countries, he said.
According to court documents, Valley Meat will yield a profit of $180 per animal, or $435,000 in one month, based on the slaughtering of 2,420 horses.
Dunn also represents another company that intends to slaughter horses, Rains Natural Meats in Gallatin, Mo. Dunn said Rains is seeking a wastewater discharge permit from the state Department of Natural Resources (DNR), and a hearing is scheduled for Jan. 20 on whether horses should be excluded from the permit. Although the agency issued a permit that excluded horses, Dunn argued horses have always been considered livestock under Missouri law. (A spokesperson for the state DRN did not return a phone call).
Rains, which previously processed cattle, goats, sheep and ostriches, plans to sell horse meat for human consumption in the United States if it is able to secure a permit for horse slaughter, Dunn said. Rains' owner, David Rains, is currently driving a school bus, he said.
"They have a market for it here for people who want it [horse meat]," Dunn said. "They have been ready to go for a year as well absent these new hurdles that keep" occurring.
Responsible Transportation LLC is another business that applied for a horse slaughter permit. The Iowa-based firm reportedly converted to a beef operation last year.
When asked if Responsible Transportation plans to convert to a horse slaughter plant if it can overcome legal hurdles, Pat Rogers, a New Mexico lawyer representing the business in the federal litigation, said he wasn't sure of its plans and referred the question to Responsible Transportation's CEO Keaton Walker, who did not return a phone call seeking comment.
In 2011, Walker and two other University of Iowa graduates raised $1.5 million from 22 local investors to start up an equine-processing facility, according to a July 19, 2013, affidavit from Walker that was filed with the federal trial and appeals courts. Late in 2012, the company purchased a vacant meat processing plant in Sigourney, Iowa, for $650,000 and subsequently invested more than $1 million to renovate the facility.
According to Walker's affidavit, Responsible Transportation and the founders have invested roughly $2.9 million over three years to open the plant and meet state and federal requirements. Walker wrote in his affidavit that Responsible Transportation was bleeding $60,000 a month in overhead expenses with no revenues.
Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition
Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a special focus on regulatory issues, including at the Food and Drug Administration.
Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.
Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).
Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide, Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.
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