Why Animals Continue to be Abused: Statement of Marshal Smith, USDA Whistleblower
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Why Animals Continue to be Abused: Statement of Marshal Smith, USDA Whistleblower
I am perhaps one of the least likely people to have turned government whistleblower. I was raised in a family whose agricultural interests included a cattle ranch in south Texas. My father was Executive Director for the USDA's Fever Tick Eradication program. For nine years I was a member of the 4H club. I was comfortable with structure and rules. I was also brought up to adhere to a personal code of ethics; that meant doing what was right.
With my father's code of ethics as my model and a desire to protect the livestock industry, I joined USDA in 1976, while in my early twenties. To me, USDA exemplified doing what was right to protect the public and industry. I was assigned to a mounted patrol along the Rio Grande under the Veterinary Services Fever Tick Eradication Program. In 1979 I moved to Big Bend National Park as a Quarantine Enforcement Officer and continued riding horseback patrol for Veterinary Services. From there I was promoted to a Supervisory Animal Health Technician with the Screwworm Eradication Program, acting as an agricultural attaché to the US Embassy in Mexico. I resigned for a short time to go into private business but returned to USDA in 1984.
In 1984 I was assigned to brucellosis eradication efforts in Fort Smith, Arkansas. It was during my tenure in Arkansas that I first learned of the Animal Welfare Act. I learned that pet producers. i.e. breeders for pet stores were required to be licensed and inspected to conform with federal standards. Since USDA’s brucellosis eradication efforts had been successful I volunteered to participate in the Animal Welfare Program.
In 1985, I volunteered as an inspector for USDA'S Animal Welfare Program in order to ensure that puppy mills followed federal regulations. I recall the brief training period, which included viewing footage from a news show that had investigated pet store breeders. There was no discussion following that footage and no mention of the fact that USDA had, since 1967, been responsible for ensuring that conditions like those no longer existed. Thus began many of the naive assumptions I would make in the subsequent years when I was committed to believing the agency I worked for. I assumed then that since the problem of puppy mills had been publicly disclosed, USDA taken remedial steps. I assumed that the sobering news segment, my colleagues and I were viewing was old footage. In the field, I would learn that my assumption was wrong.
My territory included 40 kennels in northwest Arkansas. I approached my new job conscientiously. Records of these pet producers were transferred to me from a retiring inspector who told me, "If you’re smart you'll do what I did, you’ll check everything is OK." I told him that I intended to abide by the law. Another assumption: I assumed he was a lazy good old boy, that he was not voicing the agency's mindset.
The kennels I visited had seemingly never been inspected. I was overwhelmed by what I saw: the wretched looking animals, the mounds of fecal matter reaching in some cases to my knees, at very least to the wire caging of the rabbit hutches which most puppy millers used to house the dogs. In every instance that I recall, the filth and deprivation were shocking. I recorded scores of violations prompting complaints to my supervisor in Little Rock. Luckily for me however, my supervisor, DR. W. J. Ward, who had carved a niche for himself in the Animal Welfare Program, supported me. I was given a cash award and Certificate of Merit for my inspection activities.
I assumed that further measures were taken to enforce the regulations and bring offenders into compliance. I later learned that cases were not developed for enforcement, and that those that were would languish years before coming to hearing, when they would invariably be dismissed. Thus some of the most horrendous conditions under which dogs were bred festered, unfettered by federal intervention.
I accepted a promotion and transfer to Jefferson City, Missouri in 1986 as a Compliance officer, later reclassified to Senior Investigator. In this capacity I documented violations of regulations which were administered under the Veterinary Service Program; the cases were a combination of animal quarantine, animal welfare and veterinary accreditation violations. During this time, my colleagues and I were instructed to review the Animal Welfare case files and close them out with a VS Form 3-60. These were "warning tickets" used to essentially dismiss cases due to a backlog at the Office of General Counsel (OGC). These cases represented the more deplorable pet breeding facilities and I was dismayed at USDA's seemingly inability, or unwillingness, to deal with the violators as the law stipulated.
At this time USDA announced its re-organization which would separate the Animal Welfare Program from the Veterinary Services division. Agency officials publicly stated that the newly independent Animal Welfare Program's workforce of VMO’s and inspectors would be dedicated solely to animal welfare inspections. With the focus exclusively on the Animal Welfare Program it was touted that inspections and enforcement would be more effective and consistent. I would later hear that this re-organization was simply a strategic ploy to obtain larger congressional appropriations. Under Veterinary Services funds appropriated for brucellosis eradication had been allegedly diverted to subsidize Animal Welfare activities. With an independent division designated exclusively for the Animal Welfare Program additional appropriations were needed to properly fund the program. To this day the bulk of the funds account for salaries and equipment.
The resulting reorganization formed Regulatory Enforcement and Animal Care (REAC). It consisted of two distinct divisions; one for the enforcement of all APHIS regulations, Regulatory Enforcement (RE); and one for inspections, Animal Care (AC), which was responsible solely for the Animal Welfare Program. These branches were supposed to work together; Animal Care performing inspections, Regulatory Enforcement developing cases against alleged violators of various APHIS programs including AC. Five geographic sectors were created, but the RE and AC boundaries did not mesh. For example, investigators stationed in Missouri reported to the North Central Sector while Animal Care inspectors reported to the South Central Sector. This arrangement made for confusion and inefficiency.
Following the creation of REAC, Dr. Edward Slauter left his post as Director of the Animal Health Division of the Missouri Department of Agriculture. Why he left this position is telling: he was under pressure from the state's Attorney General for his failure to enforce state animal health regulations. Slauter, an associate of Dr. Joan Arnoldi, the newly named Deputy Administrator for REAC, found a welcoming home at the newly created division.
REAC's publicly stated mission to enforce the Animal Welfare Act and bring offenders into compliance is articulated by Dr. Glosser, APHIS Administrator at that time. As Glosser put it, REAC would "lead people into compliance," through "a flexible, dynamic body of regulations."
I was hopeful then that REAC would begin to address the serious inconsistencies in the inspection program and the agency's chronic failure to seek legal remedy against offenders.
By 1990, my Midwest colleagues and I were working fewer cases than prior to REAC's creation. Congress and the media however were not as willing to overlook transgressions right under the nose of USDA. A September 7, 1990 letter from Indiana Congressman, John Meyer, related to a complaint from one of his constituents who attended an exotic animal park and described it to Meyer as a concentration camp for animals. Forced out of its passive role into action, Animal Care under Dr. Mott investigated and reported three violations; I found 12 categories of violations, with numerous sub category violations. During the course of my investigation I also learned that the Missouri Department of Conservation had convicted the manager of this exotic animal park for hunting those exotic animals under his protective care. The thoroughly documented case was sent on to the USDA attorneys but never reached hearing and prosecution.
At the end of 1990, Dr. Walter A. Christensen, Animal Care Sector Supervisor, requested an investigation of a Stover, Missouri kennel operated by two sisters, Janice Knierim and Rhoda Burnett. The case is a classic example of USDA's corruption of established procedures. The kennel in question had been previously licensed under Mr. And Mrs. Vinson Whittle, their parents, who USDA convinced to surrender their license and re-apply under their daughters’ names to clean their slate of severe violations; a new license was thus issued, giving this same kennel a fresh slate, on paper. Yet the same and worse violations persisted: sick dogs ("dehydration, open sores, skin infections"), lack of water and food; improper records; failure to account for the disposition of many of the dogs they sold.
My division, Regulatory Enforcement was, however, never called in to investigate. When the sisters refused Animal Care access to their kennel, Animal Care requested intervention by the local sheriff to gain entry, this in an effort to keep in-house Animal Care's own negligence in issuing the license. The warrant secured by the Sheriff’s department was invalid due to an incorrect address. Later AC did gain access and the kennel passed inspection. But, as indicated by documents in my case file, a complainant who phoned in asked Dr. Slauter "How could they pass? Your inspector must be on the take." Slauter responded, "I know the inspector, he's an excellent inspector." In 1996 the inspector, Robert Dunning, was nabbed in a FBI sting for soliciting a bribe from a kennel owner.
For me, 1992 was a turning point. The stolen pet issue had gotten so hot that local sheriff departments were asking USDA for help. One in Missouri told me pet theft was so widespread that it wanted USDA to set up a hotline to track cases; his request fell on deaf ears. Bunchers were in their heyday, picking up animals from newspaper ads, neighborhoods and I could not understand why USDA was denying there was a problem. I speculated at the time that the situation had gotten so out of hand that the catch up work alone would inundate Animal Care's staff, in addition to reflect poorly on management. I later understood this as an attempt to keep the egregious, long unaddressed problems confined in-house. Animal Care had begun isolating itself from its sister division- it was covering its tracks by excluding Enforcement officers like myself from investigations.
To conceal their misdeeds Animal Care turned to local sheriff's rather than its Enforcement arm, as in the Donald Wood cattery. The conditions there festered over time: sick animals, lack of food or water, improper identification of cats, failure to remove excrement from cages, lack of veterinary care to the extent an inspection report noted: "The gravity of this situation is compounded by the fact that the animals were apparently temporarily abandoned." A warrant was issued with the assistance of the local sheriff and five cats were seized; the warrant, however, did not authorize the seizure. Regulatory Enforcement was subsequently called in to clean up the mess. In an apparent effort to destroy the evidence of the illegal confiscation, Dr. Christensen ordered the cats destroyed. The APHIS Administrator had to sign a confiscation order after the fact. Had Animal Care gone through the proper channels the confiscation would have been legal.
In the Bryant case, yet another case of improper authorizations by Animal Care involved instructions given to an inspector to falsify his reports. When I accompanied this inspector and entered the filthy kennel building, which housed the puppy mill, my eyes immediately started burning from the ammonia vapors; there was no ventilation. One-gallon cans, which formerly contained toxic paint, served as water buckets. When I returned to our vehicle, the Animal Care inspector wrote up his report, clearly omitting some of the most serious and obvious violations. He explained to me that his supervisor had told him "not to document too many violations." I then phoned my own supervisor to discuss this situation. I followed up with a memo, which I faxed to his office as requested. I subsequently learned that the memo had been destroyed "to protect" me. I had not done anything wrong and I was angry that my superiors would not or could not address the issue of a falsified document or the alleged instructions to do so.
This was the last pet producing facility I was asked to visit. In fact, I was not given cases from Animal Care until year-end 1992 when I was dispatched to examine the records of two long time research suppliers, Bruce Barnfield and Randall Huffstetler. The Animal Care inspector responsible for inspecting Huffstetler's kennel had formerly worked at one of the dealer's clients, a university in Missouri. This same inspector had previously called Huffstetler for tips on getting hired by the agency. He returned the favor quid pro quo. On the occasion of my visit, he gave Huffstetler an inappropriate correction deadline. I reported my objections to this action to my supervisor. Huffstetler lodged his own complaint: he was incensed that he had been cited at all. Dr. Bruce Mammeli, Assistant Sector Supervisor, sent an apologetic letter to the dealer exempting him from responding to those citations. Suddenly the inspection had become simply a "fact finding mission." As Mammeli wrote: "On fact finding inspections correction dates are not given, therefore they are not mandatory and will not be held against you during your next routine inspection."
The following year I was asked to review 16 computer generated pages of selected excerpts relating to suppliers of random source animals whose records I had copied. I was not allowed, however, to use the records I had copied, only what headquarters had sent down to me. The resulting case, which I prepared with such selective evidence, was, not surprisingly, returned to me as insufficient for prosecution. The voluminous records I had copied which indicated scores of violations had disappeared. It was not until 1996 that, under pressure from the Office of General Counsel (OGC) and finally a threat of prosecution, Huffstetler voluntarily relinquished his license.
At that time, it was advantageous for the sake of public relations and political expediency to finally sacrifice this one dealer, whose kennel should never have been licensed.
In May 1992 the OIG issued its audit of APHIS. For me, the report was confirmation of what I had long been observing and reporting back to my supervisors: there was internally an ongoing pattern of mismanagement, lack of enforcement of the regulations, and a passive, reactive administering of the Animal Welfare Program. OlG concluded that "APHIS cannot ensure the humane care and treatment of animals at all dealer facilities as required by the Animal Welfare Act...did not inspect dealer facilities with a reliable frequency and it did not enforce timely corrections of violations found during inspections." Of the 284 facilities reviewed, 46, or 16.2 percent, had received no annual inspection; 80.8 percent of the remaining facilities found to be in violation had received no follow-up; that APHIS does not have an effective inspection monitoring system... had not timely penalized facilities found to be in violation - in one case "continuous, uncorrected violations” were noted as far back as July 1988.
Notwithstanding this scathing federal report, USDA took no corrective action. Valuable time and resources were thus wasted and admonitions soon forgotten by USDA. Operationally, USDA continued to fall down on the job. In the next year, 1993, there were even fewer inspections fewer re-inspections, fewer cases investigated and reviewed, fewer cases submitted to Regulatory Enforcement; fewer compliance inspections; fewer cases submitted to OGC; fewer official warnings, and on and on. Licensed facilities in violation remained virtually unchanged. I began to understand that USDA had assumed the position that it was above the law.
Meanwhile, complaints had been flooding USDA in states hardest hit by pet theft, including Missouri and Iowa. Media were breaking stories of animals vanishing without at trace. USDA had been forced to respond. A mid West Stolen Dog Task Force had been hastily formed in 1990; I was not asked to participate. Nearly 150 pages of unreleased field investigator notes indicated that dog dealers under investigation had in a few months period obtained dogs from 148 illegal sources, from dealers who had been convicted in local court of stealing pets, and from long dead individuals or those who simply did not exist. Yet APHIS administrator Dr. James Glosser issued quite another finding to the public and press. USDA concluded, "There was a lack of substantive evidence that dealers were knowingly dealing in stolen pets.” Inspectors were told to offer licenses to the 148 illegal suppliers, also known as bunchers.
Providing improper statements to the government (18, U.S.C., 1001) could have sent USDA administrators themselves to jail for a maximum of five years, and a $10,000 fine, let alone imposed maximum sanctions against the dog dealers.
This dog task force would be the first of three, which provided fodder for the agency's self-justified inaction and involved significant laundering of data and tampering with evidence. A January 1993 task force, from which again I was excluded, found rampant falsification of records among long prospering violators in Missouri and Arkansas, and evidence that dealers were obtaining dogs and cats from “Free to Good Home” ads and from other dealers who had been convicted of illegally acquiring animals. One dealer whose underground, football field size underground kennels service most of the large mid west research institutions, burned his records prior to an announced inspection visit and, according to one of its Senior Investigators, moved about 300 dogs overnight to undisclosed locations. Instead of aggressively pursing this dealer, the Task Force was instructed to drop his from further investigation.
Ultimately the entire task force project was canned, despite or perhaps because of, accumulated evidence of wrongdoing by USDA licensees. In November of the same year, another stolen dog task force was revived, this largely in response to the publication of STOLEN FOR PROFIT, a book about the theft of pets and USDA's role in enabling those crimes. This Stolen Dog Traceback Project like its predecessors uncovered severe, widespread violations of the law at dog dealer kennels.
According to USDA regulation, 9 CFR, Section 2.132 (b), dealers must determine whether or not a particular animal was born and raised on his supplier's premises. Yet USDA had constructed pre-written affidavits, which omitted this crucial question, thus exempting critical evidence from case files. I had sent on records containing obvious violations, which should have again justified punitive action, but when those records were returned to me they were purged of these observations and watered down to a handful of relatively minor violations. In one case, Animal Care referred to Enforcement only 17 minor offenses out of hundreds of major, well-documented violations.
National news magazine shows had picked up the story. I was interviewed in silhouette for "Eye to Eye with Connie Chung." Although I was a key source I remained anonymous, out of fear of agency reprisals. Yet there were mounting suspicions that I had provided the author with damning internal documents and that it was in fact I on the news show. By the end of 1993 I had been removed from Animal Care cases involving dogs and cats. My work assignments were principally in the area of animal quarantine cases under the purview of Veterinary Services. I was totally out of the dealer and puppy mill investigation loop.
Throughout 1994 into 1995, USDA's public exposure and vulnerability was increasing. The re-release in paperback of Stolen for Profit drew yet more public and media attention to stolen pets and USDA's role. Despite specific federal code Title 7, Section 2159 "Authority to Apply for Injunction" if the agency believed that "any dealer is dealing in stolen animals or is placing the health of any animal in serious danger," the only occasional cases which made their way to the OGC were invariably granted safe haven. In its by then 28 years monitoring dealers - some of whom had been found guilty by local courts of stealing pets, dealers who had been housing animals in everything from front load dryers to mailboxes to chicken coops, dealers who were selling infected and dying animals to research institutions, the USDA Attorney General had only once taken injunctive action. At this point, only the high profile cases, which had attracted media attention were being, resolved other than by warnings. Under threat of punitive action, relatively small dealers voluntarily relinquished their licenses, among them Randall Huffstetler. This was good PR for USDA, which could claim to shut these dealers down.
USDA's "discretionary powers" were, however, enabling the agency to re- write its federally mandated job description, favoring industry (dog dealers and their research, puppy mills and their pet store clients) over the public. The agency was making obtaining and retaining those licenses by violators easier. It was simply governing "by consensus," and actively removing dealers from legal obligation to comply with regulations. One USDA memo specifically states that corrective measures for non-compliant items cited during routine inspections should be a “…consensus between the inspector and the licensee or registrant.”
It is particularly noteworthy that USDA continued its laissez faire policies despite a 1995 internal report by the Office of Inspector General identifying the agency's negligence and non-enforcement. USDA seemed to have also lost control over not only dealer kennels but its own employees. During a 1994 annual meeting in Oklahoma word got out that a USDA employee within Animal Care had reportedly embezzled over $80,OOO from USDA, primarily in dog dealer license fees and subsequently sabotaged the computer systems so that it became impossible to determine the full extent of this damage.
Shortly after the 0IG report was released, REAC's own internal assessment was provided to headquarters; this report was not made public. In fact, administrators flatly told press inquirers that no such report existed. In the summer of 1994 Morley Cook, had conducted a review of the South Central Sector REAC program whose office was in Fort Worth, Texas. Cook found significant failings within that area's program: the data base system impeded efficiency and management control; public complaints were not being recognized; inspectors were not adequately trained and lacked sufficient information for their job performance; REAC policy was not uniform, etc. What the report did not mention was that the Sector Supervisor, Dr. Walter Christensen had been taking matters into his own hands.
Since 1992, Dr. Christensen had been arbitrarily clearing Enforcement files of violators. Animal Care supervisors had access to the Compliance Investigations Tracking System (CITS) which tracks cases from initiation date to final resolution. This was initially an investigative tool designed to track the time spent gathering evidence and completion of an investigative report subsequent to formal prosecution. Dr. Christensen lobbied for and was eventually granted access to the CITS System so AC could track cases handled by the AC Sector offices. However, Dr. Christensen was closing out cases, oftentimes the same day of their entry. He was accomplishing this by arbitrarily issuing warning tickets. In many cases the violation would have justified a far more punitive action, for example dealer license suspension and even confiscation of animals whose health and safety was in danger. It was my understanding the Enforcement's investigations were a management tool for Animal Care, a back-up for any violations Animal Care had failed to observe. This, apparently, is just what Animal Care did not want: any further indication of its negligence. To bolster its slack enforcement image, the south central sector was padding its enforcement entries.
In spite of or perhaps because of my frustration with USDA authorities I applied for a promotion and was interviewed by RE Sector Supervisor Neil Williamson concerning an Enforcement Specialist position, a promotion that would have entailed my moving to Denver. I even received a confirming letter. However, I received a call from Williamson stating that he had been instructed by Ron Stanley, Deputy Administrator for Regulatory Enforcement, to advise me that the job in Denver had been "put on the shelf." I immediately faxed a memo to Williamson, requesting clarification.
A month later, on May 15, 1995 I was told by Dianne Shank, Regulatory Enforcement Supervisor for the South Central region, that my position in Jefferson City had suddenly been "abolished." I was also told that I had to choose one of seven cities as my new duty station. There was no mention of my promotion to the Denver office. The agency was asking for an immediate reply indicating my compliance with its sudden new directive.
To address this clear evidence of retaliation, I contacted an attorney. He advised me not to comply until I received a written request and had an opportunity to review the agency's offer. On May 22 I advised the agency that I had hired an attorney. That same day Ron Stanley left me a voice mail stating that I would not have to relocate after all. I do not believe the agency was prepared for me to take such aggressive action.
By now I was receiving only insignificant investigations which had no merit. But my complaint concerning the rescinding of my promotion had drawn the attention of OlG. In late November 1995, I was interviewed by an investigator. He told me that Office of Inspector General was looking into allegations of corruption within REAC. At this time, I was sent a case from Animal Care. On fact value it seemed open and shut: minor violations involving the unlicensed sale of some dogs to research. Animal Care did not expect me to further investigate using the records they supplied. I learned that this buncher had been selling dogs to one of the major Arkansas based dealers during a period of ten years, using his relative's names. Again I had, by simply doing my job, placed Animal Care in a bad light. In 1997, that Arkansas dealer who received this buncher's dogs would only be fined $5000 for his own longtime, serious violations.
Following OIG's inquiry I contacted the Government Accountability Project (GAP) in Washington DC. GAP was ostensibly established to address government whistleblower complaints. It was clear by now that I was the subject of retaliation by the agency. GAP was not aggressive in filing a complaint on my behalf, however. GAP suggested I accept USDA's offer that would allow me to remain in the Midwest in my current investigative position. The USDA had created a position that was unacceptable in that I was to educate the industry and public regarding Animal Care’s mission. I simply wanted to do the job I was assigned to do, document alleged violations of APHIS regulations. I could not accept an untenable compromise that would further isolate me.
The on-paper supervisory position would have made me the target continued hostility. Already my once amicable, productive relationship with my longtime office mate in Jefferson City had been eroded. The officer told me, "I'm tired of your whistleblowing shit" and expressed a desire to "beat the shit out of me." He made these statements in the presence of three superiors including Ron Stanley, *none of whom defended me.
Meanwhile Animal Care was consolidating its power. Through a voice mail announcement -no paper trail, we were informed that Regulatory Enforcement would be severed from Animal Care and transferred to the Office of Management and Budget. By assigning enforcement to an office which makes regulations, rather than enforcing them, the former REAC, thus divested of it RE, would take even fewer steps to deal with alleged violators.
In February 1997, I resigned from USDA, a disheartening end to nearly 20 years of services. I forfeited my retirement as well as a lifetime career. The untenable atmosphere had taken a toll. Fortunately, I found a niche with IDA through friendships I had nurtured during my tumultuous last few years with USDA. I quickly embarked on a war against puppy mill leading national, regional, and local television crews to deplorable facilities. On one of my escapades the news crew and I were shot at by the kennel operator and the news vehicle hit with pellets from the shotgun. The shooting incident was caught on tape yet two years later a jury acquitted the shooter.
The suffering and misery that I have seen and continue to see motivate me to fight for the animals who have no voice, no representation, and virtually no standing with our laws. I am determined to expose the evil puppy mill industry, which is supported by the retail pet industry. Each day our efforts improve thanks to those who have seen a mill or vicariously experienced the agony victims of this industry endure each day. Many will suffer and others die at the whim of people motivated by greed instead of love for animals that they profess to the world.
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