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August 23, 2001

H.R. 2622, the "Helping Out to Rescue and Save Equines Act"



QUESTIONS PRESENTED

The following is a legal analysis of H.R. 2622, introduced in the House of Representatives on July 25, 2001 by Rep. Thomas M. Reynolds (R-NY). A copy of the bill is attached. Specifically, you have requested an opinion on three issues:
  1. Whether H.R. 2622 would prohibit transport from a state to a foreign country of horses for slaughter or horse flesh for human consumption.

  2. Whether H.R. 2622 would pre-empt existing or future state statutes relating to slaughter of horses for human consumption.

  3. The significance of the "downed horse" exemption in H.R. 2622.

SHORT ANSWERS
  1. H.R. 2622 is drafted in such a way that it clearly will not prohibit the transport from a state to a foreign country of horses for slaughter or horse flesh for human consumption.

  2. H.R. 2622 will, if enacted, pre-empt any existing or future state law relating to slaughter of horses for human consumption that conflicts with the bill, including California's Proposition 6, adopted by the state's voters in 1998, and the proposed 2002 Massachusetts initiative statute known as "Brown Beauty's Bill."

  3. The "downed horse" exemption in H.R. 2622 will permit the interstate transport for slaughter for human consumption of lame and sick horses most likely to suffer during the trip and may inadvertently encourage owners, dealers, or shippers to inflict crippling injuries on horses to come within the exemption.

DISCUSSION
  1. H.R. 2622 will not apply to international commerce.

    The Constitution gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. H.R. 2622 is drafted in such a way that it will only address interstate commerce, and will not apply to transport of horses1 from a state to a foreign country. This is clear from the bill's stated purpose, "to prohibit the interstate transport of horses for the purpose of slaughter or horse flesh intended for human consumption." (Italics added.) The intent to affect only interstate commerce, and not commerce with foreign nations, is also clear from the tile of the Act's Section 2, "Interstate Transport of Horses for Slaughter Prohibited." (Italics added.)

    Subdivision (a) of Section 2 contains broad language that theoretically could be construed to extend to transport from a state to a foreign country. Subdivision (a) would prohibit transport of horses for slaughter or horse flesh for human consumption "between any place in a State and any place outside of such State." (Italics added.) The United States Supreme Court has held, however, that the use by Congress of nearly identical language does not refer to commerce between a state and a foreign country. EEOC v. Arabian American Oil Co., 499 U.S. 244, 249-51 (1991).

    The bill would therefore permit transport of a horse from a state directly to a foreign country for purposes of slaughter. This means horses in any border state with Canada or Mexico could lawfully be trucked across the border for slaughter. The bill would also permit transport of horse flesh for human consumption from a state directly to a foreign country. Horses in one of the states with horse slaughter facilities could be slaughtered and their flesh shipped directly from that state to foreign countries for human consumption.

  2. H.R. 2622 will pre-empt conflicting state laws.

    If Congress were to enact H.R. 2622, it is clear from the repeated references to interstate commerce in the bill that it would be exercising its constitutional authority over interstate commerce. Any state law that conflicts with a federal statute enacted under the commerce clause must give way under the supremacy clause of the federal constitution. Francis v. Southern Pacific Co., 333 U.S. 445 (1948); U.S. Const., Art. VI, Cl. 2. The Supreme Court has established two tests of pre-emption:
    "[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. [Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U. S. 190,] 203-204 [(1983)]; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U. S. 52, 67 (1941)." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984).


    California Coastal Com. v. Granite Rock Co., 480 U.S. 572, 592 (1987).

    Under the first test, H.R. 2622 does not expressly pre-empt state law in the field of horse slaughter for human consumption, nor in my opinion does it evince a congressional intent so thoroughly to occupy the field as to prohibit all state legislation in the area. Under the second prong of the second test, however, state statutes that prohibit conduct that H.R. 2622 would permit would in my opinion be pre-empted. H.R. 2622 by its terms permits transport of downed horses for slaughter for human consumption. While less clear cut, H.R. 2622 also appears to intend by omission to authorize transport of equines other than horses for slaughter for human consumption. (See footnote 1, ante.) If transport is permitted, it follows that owning, possessing, selling, buying, giving away, and accepting such non-horse equines and downed horses is also permitted. California's Proposition 6 and the proposed Massachusetts 2002 initiative "Brown Beauty's Bill," by contrast, expressly prohibit receiving, possessing, offering for sale, selling, offering to buy, buying, offering to give away, giving away, or transporting any horse or other equine for slaughter for human consumption.

    This type of federal pre-emption is illustrated by the Supreme Court's opinion in Fidelity Federal Savings & Loan Association v. De La Cuesta, 458 U.S. 141 (1982). In that case, the Supreme Court held that California law, barring a mortgage lender from exercising a "due-on-sale" clauses unless the lender could prove that transfer of the property impaired its security, was pre-empted by a federal regulation that gave federal savings and loans the power to include "due-on-sale" clauses and the discretion to enforce them without such proof. As the Supreme Court explained,
    The conflict does not evaporate because the [Federal Home Loan Bank] Board's regulation simply permits, but does not compel, federal savings and loans to include due-on-sale clauses in their contracts and to enforce those provisions when the security property is transferred. The Board consciously has chosen not to mandate use of due-on-sale clauses "because [it] desires to afford associations the flexibility to accommodate special situations and circumstances." 12 CFR §§ 556.9(f)(1) (1982). n10 Although compliance with both [the federal regulation] and the [California] rule may not be "a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 142-143, the California courts have forbidden a federal savings and loan to enforce a due-on-sale clause solely "at its option" and have deprived the lender of the "flexibility" given it by the Board.
    Fidelity Federal Savings & Loan Association v. De La Cuesta, 458 U.S. at 155.

    Similarly, it would not be impossible to comply with both H.R. 2622, on the one hand, and the California or Massachusetts laws, on the other. The proposed federal statute does not require the transport of downed horses for slaughter for human consumption; it simply permits it. Because the California statute and the proposed Massachusetts statute are more restrictive than the proposed federal statute, a person could never be compelled to violate the federal statute by complying with the state statutes. But any state statute that prohibits conduct the federal statute would permit "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." California Coastal Com. v. Granite Rock Co.,480 U.S. at 592. By adopting H.R. 2622, Congress would express its intent to permit transport for slaughter for human consumption of non-horse equines and downed horses. State laws banning such conduct would frustrate this purpose. Thus, at least with respect to non-horse equines and downed horses, H.R. 2622 would pre-empt such state laws.

  3. The "downed horse" exemption is likely to have perverse consequences.

    Section 2, subdivision (a)(1) of H.R. 2622 would make unlawful the interstate transport of "any horse (other than a downed horse) for the purpose of slaughtering the horse." "Downed horse" is defined in subdivision (g)(1) as "a horse that is unable to stand and walk unassisted." The exemption of downed horses from the bill's prohibition would allow transport to slaughter of precisely those horses most likely to suffer pain, injury, or death during the trip. It would also do nothing to discourage, and may actually encourage, owners, dealers, and shippers to maim horses in order to avoid the law's reach.

    The United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) commissioned a study that was reported in an article entitled "Survey of Trucking Practices and Injury to Slaughter Horses." The article is co-authored by Temple Grandin, Kasie McGee and Jennifer Lanier of the Department of Animal Sciences at Colorado State University in Fort Collins, Colorado. The authors observed 63 trailer loads carrying a total of 1008 horses arriving at two slaughter plants in Texas in July and August of 1998. Among their conclusions are the following:
    The greatest welfare problems observed in this survey were caused by either neglect or abuse at the point of origin. Six percent of the horses surveyed had serious welfare problems that occurred at the point of origin and 1.8% had severe welfare problems caused by injuries which occurred during marketing or transport.

    Transport and market damage includes, but is not limited to abrasions on withers, back and croup scrapes, lacerations and abrasions on the head, fresh cuts, bite marks, and eye injuries.

    Owner problems include, but are not limited to emaciated, severe founder, broken legs, bowed tendons, extensive infections, foot bent over, deformities, and tumors all over the body.

    Approximately 73% of the severe welfare problems observed at the slaughter plants did not occur during transport or marketing. Some examples of severe welfare problems which were caused by the owner were severely foundered feet, emaciated, skinny, weak horses, animals which had become non-ambulatory and injuries to the legs such as bowed tendons. Four horses were loaded with broken legs. One of these horses was a bucking bronc that had broken its leg during a rodeo. It died shortly after arrival at a plant.
    Among the authors' recommendations: Individuals who transport horses unfit for travel should be fined, and procedures should be implemented to immediately euthanize horses with severe injuries such as broken legs when they arrive after the slaughter plant is closed. If horses unable to walk after being transported for slaughter due to broken legs should be euthanized to prevent their suffering, it makes no sense to allow horses in this condition to be loaded for transport to slaughter in the first place. See also Grandin T, McGee K, Lanier JL, "Prevalence of severe welfare problems in horses that arrive at slaughter plants," J. Am. Vet. Med. Assoc. 1999 May 15; 214(10):1531-3.

    Owners, dealers, and shippers intent on transporting horses for slaughter may actually be given an incentive by enactment of H.R. 2622 to injure horses so that they are unable to walk unassisted and are therefore exempt from the law. It could be argued that existing state and federal animal cruelty laws already outlaw such practices. However, those laws are rarely enforced, particularly with respect to slaughter-bound animals.
CONCLUSION
H.R. 2622 will not prohibit shipment of U.S. horses from a state directly to a foreign country for slaughter, or the shipment of horse flesh for human consumption from a state directly to a foreign country. It will pre-empt state laws aimed at stopping slaughter of equines for human consumption, at least with respect to equines other than horses and downed horses. Finally, the "downed horse" exemption in H.R. 2622 will permit transport of weak and injured horses most likely to suffer or die during the trip, while possibly creating an incentive for intentionally maiming horses to take advantage of the exemption.



Prepared for the California Equine Council by

Law Offices of Lowell Finley
1604 Solano Avenue
Berkeley, CA 94707-2109
Telephone: 510-290-8823
Fax: 510-526-5424


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