Information on Website: www.memoryofchaucer.com/franklosey.htm
I wish to share what I believe "Everyone Needs to Hear, Rather Than What They Want to Hear."
The APHIS FINAL RULE is like a runaway freight train, and I personally and professionally believe that the only realistic, practical way to "derail" the "freight train" before November 17, 2013 is for a Federal Judge to issue a Temporary (ideally a Permanent) Injunction that would expressly prohibit the USDA from implementing the Final Rule. In short, the "60-Day Time Bomb clock" is ticking, and if a Federal Injunction is not issued before November 17, 2013, the APHIS Final Rule will have the "EFFECT" OF LAW THAT MAY BE ENFORCED AGAINST ANY BREEDER THAT APHIS (A.K.A. MS. SARAH L. CONANT) DETERMINES TO BE IN NON-COMPLIANCE!
Although the APHIS Final Rule is a "Regulation," it is a "Readers Digest" version of the PUPS Bill, and it will "grease" the HSUS path for HSUS to begin 2014 with a Full Court Press to persuade Congress to enact the PUPS Bill. In this regard, an unchallenged APHIS Final Regulation will strengthen the arguments that HSUS will put forward for Congress to enact the PUPS Bill. And what is so chilling is that when the PUPS Bill comes up for a vote, the APHIS Rule will - - repeat "WILL" - - be cited in support of an "eleventh hour" floor amendment to add a few tweaks that purportedly will be technical in nature, but could be the final nails being drilled into the figurative coffins of all Hobby and Commercial Breeders.
While there is so much truth in the adage that "Desperate Times Call for Desperate Measures," I fervently believe that "Desperate Measure" of citing subjective "loopholes," such as claiming that all dogs bred fall into the hunting or working or any other "exempt" dog category is doomed - - yes
doomed - - to failure because Dr. Rushin stated that decisions will be made on a "case by case" basis. Such a subjective "case by case" statement could be cited as one of the judicial arguments for seeking a Federal Injunction because it constitutes an admission that the Final Rule is so vague and ambiguous that breeders may be subject to subjective rather than objective standards, which will create a realistic potential that their Constitutionally guaranteed due process rights may be jeopardized because they will be subject to arbitrary interpretations that would not stand the scrutiny of judicial review. In this regard, bear in mind that "case by case" interpretations may very well be made by Ms. Sarah L. Conant, the former HSUS Litigation Attorney who is now the Chief of the APHIS Investigative and Enforcement Branch! And she has the authority to decide how great fines will be for a violation of this Final Rule, and in "appropriate" cases, she may further make recommendations as to "prosecutions!"
BOTTOMLINE: Those who believe they can circumvent compliance with the Final Rule by claiming that they fall within an "exception" are playing with fire that could ultimately result in fines and lifetime prohibitions from ever being permitted to breed dogs. That is why it is so important to challenge the Final Rule before it becomes, in effect, a "Rule of Law." In this regard, if all breeders contacted their respective Member Organizations and urged them to immediately and collaboratively work together in order to seek a Federal Injunction NOW, the "Window of Opportunity" to stop the "runaway freight train" will not be lost, and the PUPS Bill may be mortally wounded, and lose Congressional Support!
The "Desperate Measure" that has the greatest chance of success to stall and "derail" the runaway APHIS FINAL RULE freight train is for all breeders - - Hobby and Commercial Breeders - - to make a commitment to "STAND UNITED," and to cease and desist "pointing fingers at one another," and follow the HSUS Playbook Strategy of presenting a "unified front."
Last year the HSUS orchestrated the APHIS Proposed Rule as part of its "masterful" and diabolical Strategic Plan, which it has "masterfully" orchestrated over the last 10+ years by, step-by-step, deceiving and dividing the breeder community of Hobby and Commercial Breeders. First, it deceived the hobby breeder community in the 2004-2006 time-frame by claiming that it only was targeting the commercial breeders which it referred to as the nasty and inhumane "PMs." (Note I never publicly use the phrase that the "PM" stands for because it was designed by the HSUS to create a false image in the minds of the America Public and Elected Officials! And it has worked, even though it is the equivalent of a despicable racial or ethnic slur.)
Many within the Hobby Breeder Community have used the HSUS' "PM" phrase over and over again without realizing that this usage supported the "divide and conquer strategy" of the HSUS because it offended a significant number of Commercial Breeders who truly, truly care about the health and welfare of their dogs and puppies, and who meet or exceed even the AKC Standards. And to the dismay of AKC and the thousands of AKC Breeders, they were shocked on May 1, 2013 when the HSUS stated that the AKC was "joined at the hip" with the "PMs!" All the more reason for AKC Breeders to cease using the "PM" phrase that predictably will transition into the HSUS referring to
Commercial "PMs" and Hobby "PMs."
Predictably, the HSUS will use any attempt by the Hobby Community to exempt themselves out from under the Final Rule as further evidence that the AKC and its Hobby Breeders are "joined at the hip" with the "PMs," and the HSUS will put on a major push at the beginning of next year to claim that the
flaws associated with the APHIS Final Rule can only be corrected by the passage of PUPS. In short, "loophole" arguments will be cited as a reason for swift passage of the PUPS Bill, at which time a few "tweaked" provisions will be added as late night "Floor Amendments," which Amendments would
tighten the noose tighter around the necks of all breeders - - Hobby and Commercial - - and provide yet another basis for HSUS to press for publishing a new and even more stringent Final Rule that will have death knoll implications for all breeders. This is why Commercial Breeders must support all efforts by the Hobby Breeder Community to stop the USDA from enforcing the Final Rule with a Federal Injunction. In this regard, if the collective efforts of "ALL" breeders resulted in a Federal Injunction that barred the enforcement of the APHIS Final Rule, such an Injunction would all but absolutely- positively "kill" - - like a "poison pill - - the PUPS Bill, which Bill is even worse than the APHIS Final Rule. Thus, a "WIN-WIN" for all Hobby Breeders and all Commercial Breeders. In short, the PUPS Bill would become "toxic," and even the current co-sponsors would not push for a vote.
In the words of Benjamin Franklin: "We must indeed all hang together, or most assuredly we shall all hang separately." In short, Commercial Breeders must support any effort by the Hobby Breeders to obtain a Federal Injunction that will stop the USDA from enforcing the APHIS Final Rule on November 17, 2013.
The time, cost and expense of seeking a Federal Injunction will be substantial. However, in the long run, the cost of supporting the effort to obtain a Federal Injunction will pale in comparison to the financial and psychological cost to all affected breeders who are forced to either comply with the APHIS Final Rule, as interpreted by Ms. Conant, or to cease breeding dogs all together. In this regard, no Hobby Clubs or State Commercial Breeder Organizations have the financial resources to independently fund an effort to stop the immediate and follow-on "carnage" that will occur if the Final Rule is not successfully challenged in a Federal Court. That is why I believe that it is imperative for an
organization, such as AKC, to take the lead in pursuing the effort to seek a Federal Injunction. They have the name recognition and stature to make the representation to a Federal Court that it has "legal standing" to represent the interests of the single "largest class" of breeders in the U.S., as opposed to just a few breeders. Here it is significant to note that AKC Breeders not only include Hobby Breeders, but also include a significantly large number of USDA Commercial Breeders. While AKC is in the best position to take the lead, all other Commercial and Hobby Breeder Organizations should financially support the Federal Injunction Option to the best of their financial ability.
If the APHIS Final Rule is not Successfully Challenged, there may not be another opportunity to derail the HSUS Freight Train. From a military perspective, when possible, it is best to pick the battles you have the best chance to win. The APHIS Final Rule may be the best battle to wage because there are so many flaws and "omissions" in the Background Justification published in the Federal Register that may be cited as the legal bases for a Federal Judge to grant an Injunction. (I do not wish to publicly cite all
of the legal bases as I do not believe it is prudent to give the HSUS a "heads-up." Never tell your enemy how you plan to defeat it!)
BOTTOMLINE: As an attorney, I professionally believe that the published discussion of the Comments that APHIS referenced in the September 18, 2013 Federal Register provides a number of legal arguments that may be cited in support of a Lawsuit that seeks to restrain the USDA and APHIS from
enforcing the APHIS Final Rule.
The Words of "It's Now or Never" have never been truer or more appropriate to say.
Frank
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