Laws for Larry – Protecting Montana’s Police Horse

By: Rebecca Price, Staff Member

Larry, the only police horse in the state of Montana, may soon receive legal protection for serving the citizens of his Livingston, Montana community.[i] Representative Margie MacDonald of Billings introduced House Bill 106 to the Montana House Judiciary Committee on January 12, 2015.[ii]

If Montana enacts this piece of legislation, it will follow many states’ codified protection of police horses and dogs from intentional infliction of injury. The Georgia code punishes those who harm police horses or dogs by a felony and upon conviction with one to five years in prison and a fine of up to $10,000.[iii] Ohio’s legislature articulated harsh punishments for assaulting and harassing police horses and dogs.[iv] In line with other states’ legislation, the proposed Montana bill would cause someone who injured police or search or rescue horses to serve at most one year in prison and pay up to a $5000 fine.[v] According to Officer Jessika Kynett, a police officer and Larry the equine officer’s partner, the Montana statute would simply add police horse to the current police canine protection statute.[vi]

Representative MacDonald stated that the proposed bill would protect “highly trained, highly valuable animals”[vii] that serve the people of Montana. In 2002, Congress passed a law that mandated punishment for the intentional harming of a police animal to range from one year to ten years in prison based upon the degree of harm caused to the animal.[viii] In support of this bill, Senator Jon Kyl stated that law enforcement animals, dogs and horses, are not property and the penalty for harming one of these creatures should be “greater than the penalty for denting a car.”[ix]

Mounted patrol horses are animals that are purchased, or donated, to the police department. The Houston Police Department published its training regimen for police horses. In this department, the potential police horses must undergo an evaluation period to determine the horses’ health. Next, the horse must complete various obstacles and tasks to determine if the horse will work with the unit. If a horse is accepted to the mounted unit, the horse must continue training with its partner officer and the unit.[x] Proponents of the Montana legislation hope that protection for police and search and rescue horses will encourage the formation of mounted patrol units across the state.[xi]​

No animal should be intentionally injured, even animals used in conjunction with police work. These animals are valuable police instrumentalities that completed extensive training. Taxpayer funds have been invested in the care and training of these animals. Trained police horses should receive legal protection to ensure the health and longevity of community funded investments.

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[i] Lisa Baumann, Montana Bill to Protect Police Horses Introduced, Great Falls Tribune (Jan. 12, 2014, 2:55 PM), http://www.greatfallstribune.com/story/news/local/2015/01/12/montana-bill-protect-police-horses-introduced/21656007/.

[ii] Id.

[iii] Ga. Code Ann. § 16-11-107.

[iv] Ohio Rev. Code Ann. § 2921.321.

[v] Madelyn Beck, Bill Aims to Protect Equine “Neigh-Sayers”, Great Falls Tribune (Jan. 12, 2015, 8:08 PM), http://www.greatfallstribune.com/story/news/politics/2015/01/12/bill-aims-protect-equine-neigh-sayers/21671753/.

[vi] Lisa Baumann, Montana Bill to Protect Police horses Introduced, The Washington Times (Jan. 12, 2015), http://www.washingtontimes.com/news/2015/jan/12/montana-bill-to-protect-police-horses-introduced/.

[vii] Beck, supra note v.

[viii] 18 U.S.C.A. § 1368.

[ix] Animal Law Committee, Report on Legislation: Approved with Recommendations (2013), available at http://www.nycbar.org/pdf/report/uploads/20072090-ReportregardingS.518reinjuryordeathtoapoliceanimal.pdf.

[x] Mounted Patrol – Our Horses, Houston Police Department, http://www.houstontx.gov/police/mounted/horses.htm.

[xi] Baumann, supra note vi.

SB 57: The Commonwealth’s Proposed “Right to Farm” Amendment

By: Olivia Snider, Staff Member

On January 6, 2015 an Act “. . . proposing to amend the Constitution of Kentucky relating to the right to farm”[i] was introduced in the Senate, although it did not make it out of committee. This Act, if enacted by the General Assembly, would have present the following question to Kentucky voters: “Are you in favor of amending the Kentucky Constitution to provide that a citizen of this state shall have a personal right to farm, subject only to any provision of common law or statutes relating to trespass or other criminal activity, eminent domain, existing or previously promulgated administrative regulations, or other property rights?”[ii] Simply put, the proposed amendment would essentially prohibit the legislature from passing any law that unreasonably infringes upon a citizen’s right to engage in farming and ranching practices.

While all 50 states have some form of right to farm law which seeks to protect farmers and ranchers from nuisance lawsuits[iii], Kentucky would only be the third state to amend its Constitution to include such a right. In 2012 North Dakota became the first state to pass such an amendment.[iv] The proposition passed with little opposition in the state.[v] The same cannot be said, however, for Missouri’s attempt to create a constitutional right to farm. In August of 2014, Missouri became the second state to pass a right to farm amendment, but it was not an easy feat.[vi] The proposition pitted farmer against farmer within the state and the initial vote was so close that a recount was required.[vii]

It is unclear at this point whether or not such a ballot measure would easily pass or instead spark heated debate amongst voters in the Commonwealth. One thing is certain, however, and that is that this particular proposed amendment is much more specific than the amendments made to North Dakota’s and Missouri’s state constitutions.[viii] This specificity, which serves to provide a description of the types of agriculture practices protected and which laws they remain subject to[ix], may very well be what enables Kentucky’s voters to pass the amendment with little hesitation – eliminating the fear of judicial interpretation issues. However, before this question can be put to a public vote, it will first have to pass the General Assembly and it failed to do so this past session. It will be interesting to see what the future holds for SB 57.

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[i] S.B. 57, 2015 Gen. Assemb., Reg. Sess. (Ky. 2015).

[ii] Id.

[iii] Elizabeth R. Rumley, States’ Right-To-Farm Statutes, The National Agriculture Law Center, http://nationalaglawcenter.org/state-compilations/right-to-farm/ (last  visited March 16, 2015).

[iv] Blake Nicholson, Voters Make North Dakota First State in Nation to Protect Right to Farm in Constitution, StarTribune, Nov. 8, 2012, available at www.startribune.com/politics.177921891.html.

[v] Id.

[vi] Ruth Ravve, Missouri Battles Over Amendment Granting ‘Right to Farm’, Fox News, Sept. 10, 2014, available at www.foxnews.com/politics/2014/09/10/missouri-battles-over-amendment-granting-right-to-farm/.

[vii] Kristofor Husted, Missouri Constitutional Amendment Pits Farmer Against Farmer, The Salt (Mar. 16, 2015, 7:31 PM), www.npr.org/blogs/thesalt/2014/08/06/338127707/missouri-s-right-to-farm-amendment-pits-farmer-against-farmer.

[viii] See S.B. 57, 2015 Gen. Assemb., Reg. Sess. (Ky. 2015); N.D. Const. art. XI, § 29; MO. Const. art. I, § 35.

[ix] S.B. 57, 2015 Gen. Assemb., Reg. Sess. (Ky. 2015).

Surface Mine Shielded from CWA Liability, Permit Shield Defense Extended to General Permits in Sierra Club v. ICG Hazard

By: Cari Martin, Staff Member

Under the National Pollution Discharge Elimination System (NPDES) of the Clean Water Act (CWA), the federal government—and by delegation, state governments—can issue permits allowing the discharge of certain pollutants into the waters of the United States.[i] The permitting authority may issue individual permits, which apply to single dischargers,[ii] and general permits, which apply to a category of dischargers within a geographic area.[iii] Concurrently, the CWA provides that NPDES permit holders may be “shielded” from liability for CWA violations, even if those violations involve discharges of pollutants not explicitly mentioned in the permit.[iv]

While the permit shield has been used as a defense for individual permit holders,[v] a recent Sixth Circuit case, Sierra Club v. ICG Hazard, marks the first time a court has had to decide whether the permit shield extends to a general permit holder.[vi] ICG Hazard, LLC, a surface coal mine operator in Kentucky, had a Coal General Permit under Kentucky’s NPDES program. This permit included effluent limitations for several specific pollutants, but did not include selenium—a potentially toxic metal, harmful to aquatic wildlife at certain levels.[vii] Recognizing that ICG was in fact discharging selenium above the levels allowed under Kentucky’s water quality standards, the court nonetheless allowed the permit shield to prevent liability.[viii] The court further held that the scope of the permit shield could extend to general permits. It could find no way to distinguish them from individual permits, and reasoned that “absent the permit shield, the permitting authority would not only need to identify the many pollutants that a single polluter could discharge, but all of the pollutants and combinations of pollutants that could be discharged by all polluters that may later fall under the general permit.”[ix]​

Permit shields can be seen as a hindrance to the protection of water quality because they allow industry to discharge certain pollutants without facing liability. While environmental groups are unhappy with the Sixth Circuit’s decision, given that ICG Hazard’s discharge of selenium will go on unpunished,[x] state permitting agencies may now be faced with a potentially heavy burden when issuing general permits. In looking at the difference between an individual permit and a general permit, the Sixth Circuit found that “‘a larger share of the responsibility for the information gathering process leading up to the development of a general permit falls on the permitting authority rather than on the permit applicants.’”[xi] Essentially, for general permits, the permitting authority must contemplate all the pollutants that “may be discharged generally from polluters that may later be covered by the general permit.”[xii] Then, the permitting authority can set effluent limitations necessary to protect water quality.[xiii] State permitting agencies will need to be sure they are thorough in researching and identifying potential pollutants to include in general permits, so as to avoid any questions over whether or not the pollutant was contemplated and thus, the polluter shielded.

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[i] 33 U.S.C. § 1342 (2002).

[ii] 40 C.F.R. § 122.21 (2003).

[iii] 40 C.F.R. § 122.28 (2003).

[iv] 33 U.S.C. § 1342(k).

[v] See Piney Run Preservation Ass’n v. Cnty Comm’rs of Carroll Cnty, Md., 268 F.3d 255 (4th Cir. 2001).

[vi] Sierra Club v. ICG Hazard, LLC, No. 13-5086, slip op. (6th Cir. Jan. 27, 2015), available at www.ca6.uscourts.gov/opinions.pdf/15a0014p-06.pdf.

[vii] Aquatic Life Criterion – Selenium, EPA, http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/selenium/ (last updated, Aug. 5, 2014).

[viii] ICG Hazard, slip op. at 2-3.

[ix] ICG Hazard, slip op. at 9-10.

[x] See Court of Appeals Decision Highlights Kentucky Water Pollution, Permitting Loopholes, Sierra Club, (Jan. 27, 2015) http://content.sierraclub.org/press-releases/2015/01/court-appeals-decision-highlights-kentucky-water-pollution-permitting.

[xi] ICG Hazard, slip op. at 12 (quoting Sierra Club v. ICG Hazard, LLC, No. 11–148–GFVT, 2012 WL 4601012, at *7 (E.D. Ky. Sept. 28, 2012)).

[xii] ICG Hazard, slip op. at 12.

[xiii] Id.

Kentucky Fishing Regulations Go Belly Side Up When Faced With Opposition

By: Brian Wood, Production Editor

Kentucky’s fishing industry turned a new chapter during the summer of 2014 when it attempted to impose regulations on trophy sized catfish and those who would catch them.[i] Before that point, there were no regulations in Kentucky on how many trophy catfish a fisherman could pull from the Ohio River.[ii] The call for such regulations came when sport fisherman began to complain that, due to the lack of regulations, commercial fisherman had begun dangerously depleting the overall population of trophy catfish.[iii] The regulations have come about as an attempt by the Fisheries Division of the Kentucky Department Fish & Wildlife Resources to stymie and reverse what officials are worried could be over-harvesting.[iv]

Upon the complaints of recreational fishermen, who asserted that commercial catfishermen were hurting the overall catfish population and quality of recreational fishing, the Department of Fish & Wildlife began investigating the numbers of catfish in the Ohio River.[v] Researchers have found that there are problems of over-harvesting in certain areas of the Ohio River, and the Department of Fish & Wildlife determined that regulations were prudent.[vi] Recreational and competitive fishermen desire to see regulations similar to that of Ohio and West Virginia, though they lack the desire to ban commercial fishing entirely.[vii] Instead, most recreational fishermen petitioned the Department of Fish & Wildlife to promulgate reasonable regulations—not absolute restrictions—which protect the trophy-sized catfish fishery in the Ohio River.[viii]

Given these reasonable requests and its own independent studies of over-harvesting, the Department of Fish & Wildlife did propose regulations over the catfish population in the Ohio River.[ix] Among these regulations was a proposal to restrict the number of significantly large (trophy-sized) catfish that commercial fishermen could catch in a day.[x] Various regulations designed to protect the truly large catfish were approved of and passed, but have yet to make an impact on the fishing industries in the Ohio River. This delayed effectiveness is due to a lawsuit and temporary injunction order filed by a commercial fisherman seeking to rescind the newly minted regulations threatening his livelihood.[xi] As of the writing of this article, no new information regarding the injunction and lawsuit was available.

Despite this setback, the Department of Fish & Wildlife has asserted that it will continue to research the fish population in Kentucky waters and beware of further evidence of over-harvesting.[xii] According to the Department, its focus “is resource first.”[xiii] As resource managers, the Department keeps its focus on conservation while overseeing various types of resource populations and protecting them from negligent and irresponsible over-harvesting.[xiv] According to the studies the Department conducted, the catfish population of the Ohio River is in danger—it is important that the proper scope of acceptable regulations gets determined swiftly, or the Ohio River fishery itself may be at stake.

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[i] Emily Mieure, Catfish Controversy in Kentucky Waters, WDRB.com (Jun. 16, 2014, 9:41 PM), http://www.wdrb.com/story/25775167/catfish-controversy-in-kentucky-waters.

[ii] Id.

[iii] See id.

[iv] See id.

[v] Id.

[vi] Id.

[vii] Steve Douglas, Ohio River Trophy Catfish Populations: Kentucky Holds the Key, American Pro Catters (Jan. 31, 2013, 5:36 PM), http://americanprocatters.com/2013/01/ohio-river-trophy-catfish-populations-kentucky-holds-the-key/.

[viii] See id.

[ix] See Mieure, supra note 1.

[x] Ky. Dep’t of Fish & Wildlife Res., Ohio River Catfish Project 2014 Update, Ky. Dep’t Fish & Wildlife Res., http://fw.ky.gov/Fish/Documents/ohiorivercatfishproject2013.pdf (last visited Mar. 11, 2015).

[xi] See Mieure, supra note 1.

[xii] See id.

[xiii] Id.

[xiv] See id.

EquiLottery a Winner in Kentucky Senate

A bill that would allow the Kentucky Lottery Corp. to implement a shared lottery game based on the results of live horse racing passed through the Kentucky Senate 22-9 on February 13.[i] Senate Bill 74, sponsored by Louisville Republican Julie Raque Adams, moved on to the House where it was posted in Committee but did not move forward.[ii 

The bill, which builds off KRS 154A.065, “spells out integration between lottery terminals and racing pools that is the basis for a game like Equilottery.”[iii] The Equilottery game, which was developed by former GOP chairman Brad Cummings, allows lottery players to purchase a two-dollar ticket from a Kentucky lottery terminal on a live horse race.[iv] The two dollars would be split between a lottery game and the horse race, with the chance of winning both.[v] For example, if an EquiLottery player purchases a trifecta ticket that reads 3-5-8 and the horses come home in that order then the player would win a portion of the EquiLottery pool, split among winning EquiLottery players, and also would win the trifecta paid out by the racetrack.[vi]

The goals of EquiLottery are to boost horseplayer payouts through increases in handle, improve the overall racing product, and provide an innovative new product for the lottery industry.[vii] Revenue forecasts performed by Gaming Laboratories International for the first year of implementation have shown EquiLottery will perform around three-to-four percent of the Kentucky Lottery’s annual revenue, which was more than $850 million in 2014.[viii] That would equate to approximately $25-30 million in revenue. Cummings, a co-founder of the horse industry news site The Paulick Report, said with those numbers that his company would hope to take in between $250,000 and $500,000.[ix]

The EquiLottery bill, which passed unanimously through the Senate Licensing, Occupations, and Administrative Regulations Committee, has received strong support from both sides of the aisle.[x] The bill also has gotten strong support from many industry groups. Officials with the Kentucky Thoroughbred Association, Kentucky Horsemen’s Benevolent and Protective Association, and the Thoroughbred Owners and Breeders Association have told lawmakers their organizations support the concept.[xi]

By: Travers Manley, Staff Member

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[i] EquiLottery Bill Passes Kentucky Senate by Wide Margin, EquiLottery (Feb. 13, 2015), http://www.equilottery.com/articles/%E2%80%9Cequilottery-bill%E2%80%9D-passes-kentucky-senate-by-wide-margin.html.

[ii] Greg Hall, EquiLottery Bill Clears Senate After Hiccup, The Courier-Journal (Feb. 13, 2015), http://www.courier-journal.com/story/horse-biz/2015/02/13/equilottery-bill-clears-senate-after-hiccup/23357687/.  

[iii] EquiLottery Bill Passes Kentucky Senate by Wide Margin, supra note 1.  

[iv] Let’s Get Right to It. How does EquiLottery Work?, EquiLottery, http://www.equilottery.com/how-it-works.html (last visited Feb. 25, 2015).

[v] Greg Hall, Panel Gives Lottery-Racing Bet Unanimous OK, The Courier-Journal (Feb. 10, 2015), http://www.courier-journal.com/story/horse-biz/2015/02/10/panel-gives-lottery-racing-bet-unanimous-ok/23171101/.

[vi] Let’s Get Right to It. How does EquiLottery Work?, supra note 4.  

[vii] EquiLottery, http://www.equilottery.com/ (last visited Feb. 25, 2015).

[viii] Revenue Forecasts, EquiLottery, http://www.equilottery.com/media-kit.html#studies (last visited Feb. 25, 2015).  

[ix] Hall, supra note 5.

[x] Kentucky Senate Committee Unanimously Passes SB74, EquiLottery (Feb. 10, 2015), http://www.equilottery.com/articles/kentucky-senate-committee-unanimously-passes-sb74.html.

[xi] Kentucky Senate Approves EquiLottery Bill, Blood-Horse (Feb. 13, 2015), http://www.bloodhorse.com/horse-racing/articles/90074/equilottery-bill-clears-ky-senate-committee.  

Breeders’ Cup Tax Exemption to Win

By: Kara Beer, Staff Member

Kentucky just passed a bill that will reinstate a tax break for Breeders’ Cup. In October 2015 Keeneland, in Lexington, Kentucky, will host the Breeders’ Cup.[i]  This bill, House Bill 134, will reinstate the pari-mutuel tax exemption that was enacted in 2010, when Churchill Downs in Louisville, Kentucky hosted the Breeders’ Cup.

Racetracks that conduct pari-mutuel wagering on live horse races are required to pay between 1.5 and 3.5% of all money wagered.[ii] However, in 2010, Kentucky enacted KRS 138.510 (which has since been amended), which created tax exemptions on pari-mutuel wagering.[iii] The 2010 bill provided a tax exemption for racetracks that hosted an “international horse racing event in 2010” that distributed $15 million or more in purses during the event.[iv] In addition, the bill required the organization responsible for selecting the location to “contractually agree to conduct the international horse racing event” in Kentucky in 2011 or 2012. [v] Breeders’ Cup signed a contract with Churchill Downs and subsequently the track hosted the event in both 2010 and 2011.[vi] Due to this contract, Breeders’ Cup qualified for the pari-mutuel tax exemption and enjoyed this exemption in both 2010 and 2011.

Prior to the Senate’s approval of the bill, this tax exemption was no longer in effect. The 2010 bill had a caveat in place. The bill stated that after 2013, the tax exemption would remain in effect for the international horse race only if “the event returns within three years of a previously-held international horse racing event.” In order to qualify for this exemption, Kentucky would have to have hosted Breeders’ Cup by the year 2014; however, Santa Anita Park in Arcadia, California hosted it instead in 2014.[vii] The current version of KRS 138.510 mentions nothing about tax exemptions for international horse racing events in the state (in fact, the only tax exemption is for “live harness wagering at a county fair”).[viii]

House Representative David Osborne said this tax exemption will help to put Kentucky on par with other racing states, because Kentucky charges a greater wagering tax than any other state.[ix]  Although this tax exemption will cost the state about $1 million,[x] Breeders’ Cup brought an estimated $53.3 million in revenues across the state in 2010 and thus the enormous economic potential offsets this loss.[xi] However, it is interesting that Governor Beshear approved this bill despite being unable to require Breeders’ Cup to return in the following year, as he did in 2011, because Breeder’s Cup has already announced Santa Anita Park will host the event again in 2016.[xii]

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[i] Breeders’ Cup Announces Keeneland as the Host of 2015 Breeder’s Cup (June 24, 2014), breederscup.com, http://www.breederscup.com/media-center/press-releases/2014-06-24-2.

[ii] KRS § 138.510.

[iii] KRS § 138.510 (amended 2013) available at, http://www.lrc.ky.gov/Statutes/statute.aspx?id=28762.

[iv] Id.

[v] Id.

[vi] Breeders’ Cup Selects Churchill Downs to Host 2011 World Championships, churchilldowns.com (June, 5, 2010), http://www.churchilldowns.com/news/archives/breeders-cup-selects-churchill-downs-to-host-2011-world-championships.

[vii] 2014 Breeders’ Cup World Championship to Be Held At Santa Anita Park, breederscup.com (June 10, 2013), http://www.breederscup.com/article/2014-breeders-cup-world-championships-be-held-santa-anita-park.

[viii] Id. § 138.510(1)(d)

[ix] Gregory Hall, Breeders’ Cup Tax Break Nears Finish, The Courier Journal (Mar. 9, 2015), http://www.courier-journal.com/story/news/politics/ky-legislature/2015/03/09/breeders-cup-tax-break-nears-finish/24668413/.

[x] Bill Offering Tax Break for Keeneland Advances, kentucky.com (Mar. 9, 2015), http://www.kentucky.com/2015/03/09/3736532_bill-offering-tax-break-for-keeneland.html?rh=1.

[xi] Gregory Hall, Keeneland Race Course to Host 2015 Breeders’ Cup, usatoday.com (June 17, 2014), http://www.usatoday.com/story/sports/horseracing/2014/06/17/keeneland-host-2015-breeders-cup/10665599/.

[xii]Braden Lammers, Its Official: Keeneland to Host 2015 Breeders’ Cup Championship, Louisville Business First (June 24, 2014), http://www.bizjournals.com/louisville/news/2014/06/24/its-official-keeneland-to-host-2015-breeders-cup.html.

Mining for Gold: President Obama Seeks to Aid Appalachian Coal Workers

By: Logan Mayfield, Staff Member

The state of Kentucky is the third largest coal producer in the United States behind only Wyoming and West Virginia.[i] Naturally, the recent decline in the coal industry has significantly impacted the Commonwealth’s economy, especially the eastern counties. From August 2013 to September 2014 alone, approximately 18,000 Eastern Kentucky coal employees were laid off of work.[ii] While the “war on coal,” as many refer to it, has received much attention in Kentucky’s political arena, there is one thing most people would agree with regardless of party affiliation—individuals struggling with the transition away from coal are in need of some assistance.

In early February of this year, President Obama released a proposed budget for the 2016 fiscal period.[iii] The proposal includes a plan called POWER Plus, which is specifically designed to aid the Appalachian region and alleviate some of the economic problems caused by the coal downturn.[iv] While specific distribution details have not been released, many individuals and communities in Eastern Kentucky will be eligible for financial assistance if POWER Plus is enacted.[v]

Under the President’s proposal, $20 million will be used to provide job training and new occupations for coal workers who are out of employment.[vi] Additionally, $25 million will be added to the Appalachian Regional Commission’s budget for economic development in the mining towns and cities struggling the most.[vii]  POWER Plus also includes funding designated for environmental repair. As part of the plan, $200 million dollars would be dispersed over a five-year period from the Abandoned Mine Land Fund to clean deserted mines and restore land that has deteriorated as a result of mining throughout the years.[viii] For example, one proposed project is to plant new trees in desolate areas that were once mining zones.[ix] Such activity is not only expected to improve the environment, but to also create jobs for those in need.[x]​

Notwithstanding politics and personal opinions about the feasibility of the President’s proposal, it is encouraging that Kentucky citizens are receiving the national attention they deserve. While it is uncertain how this specific proposal will turn out, I am hopeful that the individuals and families impacted by the downfall of coal will soon be back on their feet.

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[i] U.S. Coal Production by State & By Rank, National Mining Association (Jan. 2015), http://www.nma.org/pdf/c_production_state_rank.pdf.

[ii] Bill Estep, Kentucky coal jobs drop again in 2014, reaching new low, Lexington Herald-Leader (Feb. 4, 2015)  http://www.kentucky.com/2015/02/04/3677495/kentucky-coal-jobs-drop-again.html.

[iii] Heather Moyer, President Obama's Budget Includes Money to Help Appalachian Communities Transition Away from Coal, Sierra Club (Feb. 2, 2015), http://www.sierraclub.org/compass/2015/02/president-obamas-budget-includes-money-help-appalachian-communities-transition-away.

[iv] Katie Valentine, Obama’s Budget Provides Millions For Out-Of-Work Coal Miners, Think Progress (Feb. 2, 2015, 3:26 PM), http://thinkprogress.org/climate/2015/02/02/3618103/power-plus-plan-for-coal-miners/.

[v] Bill Estep, Obama proposes $1 billion lifeline for parts of Appalachia where coal jobs vanished, Lexington Herald-Leader (Feb. 2 2015), http://www.kentucky.com/2015/02/02/3673874/obama-proposes-1-billion-lifeline.html.

[vi] Ken Ward, Jr., Obama’s budget includes coalfields aid, Charleston Gazette (Feb. 2, 2015), http://www.wvgazette.com/article/20150202/GZ01/150209859/1419.

[vii] Id.

[viii] Estep, supra note 5.

[ix] Id.

[x] Id.

Attack of the Clones?: Fifth Circuit Court of Appeals Allows AQHA to Deny Registration of Cloned Horses

By: Zack Mattioni, Staff Member

The cloning of elite horses may seem like the plot of Hollywood’s latest science fiction film, but in reality it is a legitimate, viable operation, albeit one that now faces a major setback.[i] On January 14, 2015, the United States Court of Appeals for the Fifth Circuit reversed a lower court decision that required the American Quarter Horse Association (AQHA), the largest equine membership organization in the world[ii], to include cloned horses in its breed registry.[iii] The AQHA is now free to enforce “Rule 227(a),” originally enacted by its membership in 2004, which categorically denies registration for all clones and their offspring.[iv] 

The current legal battle demonstrates that, in the twelve years since the first successful cloning of a horse[v], the legitimacy of clones remains stubbornly debated. Proponents of cloning argue that it offers a chance to preserve the DNA of champion horses that are deceased or are otherwise unable to reproduce.[vi] This seemingly addresses the fact that many top competitors are geldings, which are often castrated before their exceptional potential is known.[vii] 

The plaintiffs that filed suit against the AQHA also contend that its policy against cloned horses is motivated by a self-serving economic interest.[viii] Their assertion is that some of the most prominent cloning opponents are their potential business rivals, who are solely interested in keeping prices for their own horses high by avoiding competition with other elite animals.[ix] The end result, the plaintiffs claim, is the perpetuation of a monopoly supported only by greed and sham studies.[x]

The AQHA, unsurprisingly, sees things differently. It stresses that cloning frustrates the DNA testing process employed by the breed registry, making it impossible to discern a horse’s lineage.[xi] The AQHA furthermore firmly insists that breeding, not cloning, is the only way to improve each generation of horses.[xii] It warns that the high price of cloning (on average over $150,000) will ensure that only the most elite horses are included in the process.[xiii] Potentially, the continued cloning of these animals would eventually narrow the existing gene pool and result in the exacerbation of known genetic defects, as well as the creation of new ones.[xiv]

It cannot be ignored that cloning entails serious potential harm. Frequently, cloned animals suffer from diseases and developmental abnormalities that prematurely end their lives.[xv] But supporters of the practice believe the benefits outweigh the risks. The International Federation for Equestrian Sports (Fédération Équestre Internationale, or FEI), the international governing body for equestrian sports, recently reversed its 2007 ban on cloned horses, citing the value of keeping superior genetics in the gene pool and the dropping cost of cloning eventually leveling the playing field.[xvi] However, with the AQHA remaining steadfastly devoted to its anti-cloning policy, and its opponents set on appealing the verdict in its favor[xvii], it is clear that an amicable resolution is unlikely in the near future.

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[i] Pat Raia, Appeals Court Rules AQHA Can Reject Clones, The Horse (Jan. 15, 2015), http://www.thehorse.com/articles/35185/appeals-court-rules-aqha-can-reject-clones.

[ii] Mary W. Craig, Mirror, Mirror in the Stall: Animal Cloning and Its Legal Implications for Equine Registry Associations, 5 Ky. J. Equine, Agric. & Nat. Resources L. 273, 281 (2013).

[iii] Id.; AQHA Prevails in Cloning Lawsuit, American Quarter Horse Association (Jan. 14, 2015), http://www.aqha.com/News/News-Articles/2015/January/01142015-Cloning-Lawsuit-Update.aspx.

[iv] Abraham & Veneklasen Joint Venture v. Am. Quarter Horse Ass'n, No. 2:12-CV-103-J, 2013 WL 2297104, at *1 (N.D. Tex. May 24, 2013).

[v] Craig, supra note ii, at 274.

[vi] Mike Brunker, Judge Orders Quarter Horse Association to Register Clones, CNBC (Aug. 13, 2013, 12:53 PM), http://www.cnbc.com/id/100959513#.

[vii] Ollie Williams, Battle of the Clones: When Will a Replica Horse Win Olympic Gold?, CNN (Feb. 20, 2015), http://edition.cnn.com/2015/02/20/equestrian/horse-cloning-olympics/.

[viii] Abraham & Veneklasen Joint Venture, 2013 WL 2297104, at *1.

[ix] Id.

[x] Id. at *1-2.

[xi] American Quarter Horse Association Position Regarding: Abraham & Veneklasen Joint Venture v. American Quarter Horse Association, American Quarter Horse Association (Jan. 14, 2015), http://www.aqha.com/AQHA-Cloning-Lawsuit-Resources/AQHA-Cloning-Position.aspx.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Craig, supra note ii, at 275-76.

[xvi] Bill Chappell, Equestrian Group Clears Way for Cloned Horses to Compete in the Olympics, NPR (Aug. 7, 2012, 3:09 PM), http://www.npr.org/blogs/thetorch/2012/08/07/158373631/equestrian-group-clears-way-for-cloned-horses-to-compete-in-the-olympics.

[xvii] Jim McBride, Pro-Cloning Plaintiffs Want AQHA Win Overturned, Amarillo Globe News (Jan. 14, 2015, 3:45 PM), http://amarillo.com/news/local-news/2015-01-14/appeals-court-rules-aqha-horse-cloning-appeal.

The Demand for a Supreme Court Response: Electric Power Supply Association v. FERC

By: Sandy Manche, Staff Member

Demand response, a “reduction in the consumption of electric energy by customers . . . in response to an increase in the price of electric energy or to incentive payments,”[i] is good for society because it incentivizes reductions in electricity usage, thereby decreasing the use of natural resources.  Did the Federal Power Act (“FPA”)[ii] grant the authority to regulate demand response pricing to the federal or state government?  The Federal Energy Regulatory Commission (FERC) has asked the Supreme Court to rule on this jurisdictional question. 

On March 15, 2011, the FERC issued Order No. 745, requiring independent system operators and regional transmission organizations to pay “market price,” to “demand response resources participating in an organized wholesale energy market,”[iii] for reductions in consumption.[iv] However, the FERC ruling was vacated on March 23, 2014 by the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) in Electric Power Supply Ass’n v. FERC.[v] The D.C. Circuit ruled that the FERC had exceeded its powers.[vi]  Noting that the FPA splits the “jurisdiction over sale and delivery of electricity between the federal government and the states on the basis of the type of service being provided and the nature of the energy sale,”[vii] the court ruled that although demand response “affects the wholesale market,”[viii] the states have exclusive jurisdiction over the regulation of the retail market.[ix]  However, in New York v. FERC[x] the Supreme Court recognized that “the landscape of the electric industry has changed since the enactment of the FPA, when the electricity universe was ‘neatly divided into spheres of retail versus wholesale sales’”[xi] Deregulation continues to change the landscape. 

On January 15, 2015, the U.S. Solicitor General filed a writ of certiorari requesting the Supreme Court to review the ruling in Electric Power Supply Ass’n[xii] The FERC contends  it has authority to “regulate the rules used by operators of wholesale- electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates”[xiii] because, under the Chevron doctrine, the correct interpretation of the statutory text is that the FPA does not deny FERC the authority.[xiv] The FERC argues that the FPA grants it the authority to “regulate any rule, regulation, practice, or contract affecting [a wholesale] rate,” [xv] and that “[t]he payments to demand-response providers” do affect wholesale rates because the payments “are recouped directly from the rates paid by purchasers of wholesale electricity.”[xvi]

Although the issue is whether regulation of demand response pricing is a power granted to the federal government or to the states, the FERC noted that “optimal use of demand response in wholesale-electricity markets . . . is likely to produce lower electricity prices”[xvii] and GTM Research has estimated that the D.C. Circuit court’s decision could reduce demand response growth significantly.[xviii]

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[i] 18 C.F.R. § 35.28 (2015).

[ii] 16 U.S.C. § 791a (2014).

[iii] Order No. 745, Demand Response Compensation in Organized Wholesale Energy Markets, 134 F.E.R.C. ¶ 61,187 (2011).

[iv] Id.

[v] 753 F.3d 216 (D.C. Cir. 2014).

[vi] Id. at  225.

[vii] Id. at 219.

[viii] Id. at 221.

[ix] Id.

[x] 535 U.S. 1 (2002).

[xi] Id. at 16.

[xii] Petition for Writ of Certiorari, Elec. Power Ass’n, 753 F.3d 216 (No. 14-840), available at http://www.ferc.gov/legal/court-cases/appellate-briefs.asp.

[xiii] Id. at I.

[xiv] See id. at 19-21.

[xv] Id. at 20.

[xvi] Id. at 21.

[xvii] Id. at 31. 

[xviii] See Gavin Bade, Obama Administration to Appeal to Supreme Court on FERC Order, Utility Drive (Dec. 8, 2014),  http://www.utilitydive.com/news/obama-administration-to-appeal-to-supreme-court-on-ferc-order-745-ruling/341335/