More than a month has passed since I published news about out-of-control agents from the USDA’s Animal and Plant Health Inspection Service going after a couple in Nixa, Mo., for selling more than $500 worth of rabbits in a calendar year. Today, I offer an update likely to upset those who’ve been following the case of John and Judy Dollarhite.
On May 24, the Dollarhites were cautiously optimistic about their prospects after the USDA appeared to be rethinking their plan to levy up to $3.9 million in fines after some public attention — via more than a dozen posts here, at Andrew Breitbart’s BigGovernment.com and elsewhere as well as notice by Drudge Report and Rush Limbaugh — was cast on the matter. Now, it appears they had good reason to be cautious.
On June 21, I learned from Clay Bowler, the Springfield, Mo., blogger who was first to break the Dollarhite’s story, that the couple had received a foll0wup letter from the USDA. Based on the content of Bowler’s post about the USDA letter which stemmed from his conversation with John Dollarhite, I fired off an inquiry (below) to USDA APHIS Spokesperson David Sacks late Tuesday afternoon:
I understand John Dollarhite received a post-inspection letter from the USDA Animal and Plant Health Inspection Service, offering him a settlement based on a handful of conditions. Thought I haven’t yet seen the letter, I understand it requires the Dollarhites to do the following:
1) Admit USDA has jurisdiction over his animal-raising activities;
2) Refrain from breeding any kind of animals;
3) Refrain from applying for any kind of license under the Animal Welfare Act; and
4) Understand that the charges could be reinstated if any of the above conditions were violated.
After confirming, denying or clarifying the information above, please explain the authority under which USDA officials believe they can issue such an expansive set of requirements and explain how those same officials plan to respond to the huge public outcry that is certain to follow when the contents of the new letter become public.
Sacks responded almost 24 hours later:
Attached, please find the pre-litigation settlement offer that USDA/APHIS sent to Mr. Dollarhite this week. There has been no settlement agreement as of yet, but I can confirm that Mr. Dollarhite has in fact received this offer.
The Animal Welfare Act regulations [found in 9 C.F.R. 4.11] give APHIS the authority to enter a stipulation prior to the issuance of a legal complaint. The involved parties have the flexibility to craft the terms of the settlement. In other words, a settlement can be reached in such a legal matter as long as both parties agree to the settlement.
I don’t like to speculate on the public opinion that may result from our enforcement actions. We at USDA are called upon to enforce the Animal Welfare Act. Our focus is to ensure the welfare of the animals regulated under the Act, and part of our responsibility is to make sure that individuals conducting regulated activities are properly licensed so that we can inspect their animals on a scheduled basis and thus see how those animals are being cared for and handled.
Within the last year, there’s been a push to step up our Animal Welfare Act enforcement efforts, so we set out to do that in the most proficient way possible. However, we realize that it is most wise to step back in some instances and reassess our focus on enhanced enforcement, especially in cases involving first-time violators. After evaluating our original settlement offer, we have now presented Mr. Dollarhite with this alternative. We are hopeful an agreement can be worked out.
What Sacks referred to as a “pre-litigation settlement offer” in his email is referred to in the document he attached as a “Stipulation Agreement.”
The cover letter for that agreement, which appeared as the first page of the attachment, includes a reminder to the Dollarhites that the agency retains the ability “to impose civil penalties of up to $10,000 for each of the violations documented in our investigation” and informs them that they could still avoid the fines. The Stipulation Agreement, however, contains the “nuts and bolts” of the legalese to which the Dollarhites must agree.
The first and, perhaps, most interesting stipulation, is that “John Dollarhite must admit that the Secretary (of Agriculture) has jurisdiction in this matter and waive an oral hearing and further procedures.”
While I’m not a lawyer, it strikes me as a sign of weakness on the part of the USDA that such a line is included in the agreement. Are they afraid that they overstepped their bounds in the first place by aggressively pursuing fines against the Dollarhites? Are they afraid of that point becoming a losing issue in future litigation efforts? Seems that way.
Other terms to which John Dollarhite must consent and agree including the following*:
John Dollarhite must agree not to buy, sell, own, or possess breeding animals. “Breeding animals” include those animals that have not been spayed or neutered and fall under the definition of “animal” contained in the AWA and regulations promulgated thereunder.
John Dollarhite and any partnership, firm, corporation, or other legal entity that he controls or in which he has a substantial interest, financial or otherwise, are permanently disqualified from (a) obtaining an AWA license, and (b) engaging in activities governed by the AWA and regulations issued thereunder, either directly or indirectly, on or off [the Dollarhite's physical address].
John Dollarhite consents and agrees that his failure to comply with the terms of this Agreement shall automatically void paragraph D below, and that APHIS shall have the right to immediately institute enforcement proceedings against John Dollarhite based upon the non-compliant items documented in connection with animal welfare investigation MO09099-AC, and any future violations, and to pursue any and all remedies available to APHIS under the AWA.
For and in consideration of John Dollarhite’s agreements and actions described in paragraph B above, and the promises and admissions of John Dollarhite set forth herein, APHIS agrees not to institute an administrative or civil enforcement action against John Dollarhite in connection with the alleged AWA violations documented in animal welfare investigation MO09099-AC.
*Note: In the paragraphs above, I omitted the specific descriptions of the regulations cited and the Dollarhite’s physical address. To see them, download the Stipulation Agreement.
For folks like the Dollarhites, who used to have a variety of livestock on their property as farmers before moving into the town where they run a computer business, the terms outlined in the stipulation agreement must make it seem as if their onerously close to being asked to sign away their rights to life, liberty and the pursuit of happiness. But they haven’t said much about it.
With the exception of a June 21 status update — “Not happy with the letter that just came in from the USDA” — that appeared on the Facebook group page, USDA Bunny Tyrrany of the Dollarhite Family, John Dollarhite has not commented publicly about the letter. Instead, he’s told me only that he is working with his attorney on the matter.
At this point, I can’t say that I blame him for being more cautious than optimistic.
More to come, I’m sure.
UPDATE 6/25/11 at 8:05 p.m. Central: Cross-posted at Andrew Breitbart’s BigGovernment.com.
UPDATE 7/13/11 at 1:32 p.m. Central: On the Facebook group, USDA Bunny Tyranny of the Dollarhite Family, John Dollarhite reports that the USDA has requested that he respond to their offer by July 29. Meanwhile, in response to John’s request for help in finding a good administrative law attorney, I referred John to Bruce Monning of Dallas. He’s helping Doug Terranova in his battle with the out-of-control federal agency.
UPDATE 10/29/11 at 10:31 a.m. Central: The Dollarhites go to Washington.
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