[00:00:00] Speaker 04:
Please be seated.

[00:00:01] Speaker 04:
Good morning.

[00:00:05] Speaker 04:
We have five cases for oral argument this morning.

[00:00:08] Speaker 04:
We'll probably take a break after the third one, see how our time management goes.

[00:00:14] Speaker 04:
With me today is Judge McHugh from Utah and Judge Rossman from upstairs.

[00:00:20] Speaker 04:
Good morning.

[00:00:22] Speaker 04:
All right.

[00:00:22] Speaker 04:
Let's start with 23-9570 for Bresius versus US Department of Agriculture.

[00:00:30] Speaker 04:
Mr. Grant, you may proceed.

[00:00:40] Speaker 00:
Good morning.

[00:00:41] Speaker 00:
May it please the court, my name is Tom Grant, and I am here today on behalf of Fabricius Livestock.

[00:00:49] Speaker 00:
The court has read the brief, so I don't want to spend a lot of time going back and reading large portions of what you've already read, but I do want to get to

[00:00:59] Speaker 00:
the central issue that we're here for today.

[00:01:02] Speaker 00:
And that's does 9 CFR 86.5 put a reasonable person on notice of who's required to act under the regulation?

[00:01:14] Speaker 00:
So 9 CFR 86.5, the pertinent part of that that I would like to focus on and that I think merits underscoring is that a person reasonable

[00:01:28] Speaker 00:
The person responsible for animals leaving the premises for interstate movement must ensure the animals are accompanied by an interstate certificate of veterinary inspection.

[00:01:39] Speaker 00:
And if it's okay with the court, I probably will just refer to that as ICVI throughout.

[00:01:45] Speaker 00:
But the regulation right before that, a 9 CFR 86.1,

[00:01:53] Speaker 00:
gives definitions of all sorts of things.

[00:01:56] Speaker 00:
In fact, I think there are 25 or 30 terms that are defined.

[00:02:01] Speaker 00:
But there is no definition.

[00:02:04] Speaker 00:
There's a failure here.

[00:02:05] Speaker 00:
No definition of person responsible for animals leaving the premises for interstate movement.

[00:02:12] Speaker 01:
It's persons, isn't it?

[00:02:14] Speaker 00:
It is persons.

[00:02:15] Speaker 02:
And there's a definition of person, right?

[00:02:17] Speaker 00:
There is.

[00:02:17] Speaker 00:
There is a definition of persons.

[00:02:22] Speaker 00:
And in fact, I think in looking at the legislative history, originally, it was person, and they changed it to persons in an effort, I think, to make it more understandable.

[00:02:34] Speaker 00:
But in my opinion, they broadened it so that it could be more than just one individual and also so it could be a seller, a buyer, a transporter.

[00:02:46] Speaker 00:
But in my opinion, when they broadened that,

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They muddied the waters further.

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And it makes it more difficult to understand who is responsible.

[00:02:57] Speaker 02:
So I'm not sure I'm following an answer to my question.

[00:03:01] Speaker 02:
So do we take the definition from 86.1 of person when we're thinking about 86.5?

[00:03:07] Speaker 00:
The definition of person, I think you can still apply it to 86.5.

[00:03:17] Speaker 02:
So your argument focuses on responsible.

[00:03:21] Speaker 00:
Right, and who's responsible, and really the entire argument gets down to why do you write something that talks about when people are going to leave the premises, and instead the real focus of this should be on when do you cross the state line.

[00:03:48] Speaker 00:
My argument is that if you are wanting to make this clear so that somebody understands, a reasonable person would understand and have knowledge that they're being charged with a duty, that they have this duty to provide this ICVI.

[00:04:05] Speaker 00:
If you want them to know that, it would be very easy to clarify this by saying the person who crosses the state line, at the time that those wheels go over the state line,

[00:04:17] Speaker 00:
Whoever's behind the wheel of that vehicle is the person who should be charged with a crime if they don't have the proper paperwork.

[00:04:24] Speaker 00:
So that would make it so that sometimes that could be the buyer.

[00:04:28] Speaker 00:
If the buyer were going to deliver horses to another state, I mean, could be the seller if the seller is going to deliver them to another state.

[00:04:37] Speaker 00:
It could be the buyer who bought them and is going to transport them back to their

[00:04:43] Speaker 00:
Ranch in Utah or it could be it seems to me.

[00:04:46] Speaker 04:
It would be the transporter standard practice to just when you sell your horses to somebody to make it a part of the contract that the buyer is going to obtain the certificate and I Right and isn't there a standard if I mean you've been selling horses for years right right never provided certificate sometimes I mean which

[00:05:07] Speaker 00:
Yeah, and I think that, again, that that's where the confusion comes in about who is responsible, is that if you talk to people in the horse community, in western cult, in western United States even, nobody thinks that the buyer needs to go get a certificate.

[00:05:28] Speaker 00:
And again, this is a common sense argument, but it's about the whole idea that the nature of a transaction, of a sale, is that

[00:05:36] Speaker 00:
once I sell the horse to somebody else and receive the money and give them a bill of sale, they now own and have dominion and control over the animal.

[00:05:47] Speaker 00:
So it seems not logical.

[00:05:51] Speaker 04:
So you're saying that the buyer, I thought you said the buyer, nobody thinks the buyer should get this.

[00:05:58] Speaker 00:
Oh, I'm sorry.

[00:05:58] Speaker 00:
You're saying that the buyer always.

[00:06:00] Speaker 00:
Well, the buyer always, it's the seller.

[00:06:03] Speaker 00:
And I'm sorry, that probably made no sense.

[00:06:05] Speaker 00:
What I'm saying is when you sell an item to somebody else and you accept their money and you give them a bill of sale, they now own it.

[00:06:13] Speaker 00:
So the idea that the seller of a horse is supposed to be the one to provide these certificates of veterinary inspection, it just doesn't make common sense.

[00:06:28] Speaker 00:
The way this works at either an individual sale or at a horse barn is that

[00:06:33] Speaker 00:
the sale takes place and the person who now owns the horse is responsible for deciding what to do with it.

[00:06:40] Speaker 00:
And if they're going to take it across state lines, it's their responsibility to have a certificate, an ICVI.

[00:06:48] Speaker 01:
Well, but they could have done that and then it would say the buyer instead of persons

[00:06:56] Speaker 01:
I would say the buyer is responsible, but that's not what it says.

[00:06:59] Speaker 01:
It says the person's responsible.

[00:07:02] Speaker 01:
So the buyer and the seller are both responsible when a horse is sold with the knowledge that it's being bought by a buyer who's out of state.

[00:07:14] Speaker 00:
Right.

[00:07:14] Speaker 00:
And I agree that they broadened it so that it could include the seller.

[00:07:21] Speaker 00:
And I even think, and that's what I was trying to explain earlier,

[00:07:24] Speaker 00:
that it could make sense that it's the seller if, in fact, the seller was selling to somebody in another state and then knew that they were going to be the person who, I'm going to load up my horses and I'm going to drive them over to Wyoming or to Utah, then I know that I need to have an ICVI.

[00:07:41] Speaker 00:
But if I sell my horses on my property, this seems to focus on when the horse is leaving the premises.

[00:07:50] Speaker 00:
And so this could make a ranch hand

[00:07:53] Speaker 00:
could be responsible for this.

[00:07:54] Speaker 00:
I mean, anybody who's actually physically loading a horse onto a trailer is responsible.

[00:07:59] Speaker 01:
If it's not vague as to you as the seller, you don't get to argue about a ranch hand or a mechanic or the person who harvests the hay.

[00:08:10] Speaker 00:
Or the veterinarian, sure.

[00:08:11] Speaker 01:
So you've got to focus on that it's unconstitutionally vague as to the seller.

[00:08:18] Speaker 00:
Right.

[00:08:18] Speaker 00:
And as to the seller, as

[00:08:21] Speaker 00:
as a seller.

[00:08:22] Speaker 00:
And again, my client is a cowboy, a rancher, and he's very smart about what he knows and about how you buy and sell horses, but he's not a legal scholar.

[00:08:36] Speaker 00:
And even lawyers looking at this, I mean, we have three lawyers read this in our office and we're all looking at each other going, I have no idea who they mean by a person responsible.

[00:08:46] Speaker 01:
So to me, even if he read the person responsible, you'd have a different issue, but you keep doing that.

[00:08:52] Speaker 01:
And I think the person's responsible that it's plural.

[00:08:55] Speaker 00:
Sure.

[00:08:56] Speaker 00:
Words matter and apologize.

[00:08:59] Speaker 00:
Person's responsible, but it still doesn't make clear.

[00:09:02] Speaker 00:
Does that mean that all three people have to go out and get this?

[00:09:05] Speaker 00:
Do they have to communicate?

[00:09:07] Speaker 00:
Shouldn't there be some sort of educational program, something that lets people know?

[00:09:11] Speaker 02:
But isn't the removal of the word directly the change?

[00:09:14] Speaker 02:
Doesn't that hurt your argument?

[00:09:16] Speaker 02:
Or maybe you can help me understand how to reconcile the removal of the word directly now that it's broadened.

[00:09:25] Speaker 02:
How does your argument survive that?

[00:09:30] Speaker 02:
But it used to be person directly responsible.

[00:09:35] Speaker 00:
Okay, and now it says person's responsible instead.

[00:09:39] Speaker 00:
So they took out directly and they added the S and made it plural so that it could be more than one person.

[00:09:46] Speaker 00:
And I think, again, that made it more confusing, not less confusing.

[00:09:52] Speaker 00:
To take out the word directly means that now person's responsible, how do you define

[00:09:59] Speaker 00:
Who are the persons responsible for this?

[00:10:01] Speaker 00:
And would it change from transaction to transaction?

[00:10:04] Speaker 00:
And how would you delineate that?

[00:10:08] Speaker 00:
Where I was starting to go a moment ago with this is to say, to me, it would make sense in this regulatory scheme if they want this to always be clear.

[00:10:20] Speaker 00:
You could say that the seller has the responsibility to ask people, and there could be a federal form that needs to be filled out and signed.

[00:10:28] Speaker 00:
Where is this horse going to be?

[00:10:30] Speaker 00:
Where are you taking him?

[00:10:31] Speaker 00:
Because I think it's a big assumption to say that if somebody from Utah contacts my client in Colorado and says I'd like to buy five horses, that he automatically assumes they're going back to Utah.

[00:10:43] Speaker 00:
That person might own property here in Colorado.

[00:10:46] Speaker 00:
They might be taking the horses to a different place in Colorado.

[00:10:50] Speaker 04:
Was your client even aware of the existence of this regulation?

[00:10:57] Speaker 00:
I've never asked him if he read the regulation.

[00:11:00] Speaker 00:
If I'm honest, I would think that he probably hadn't actually read it.

[00:11:06] Speaker 00:
But I think in the broader context, what we're trying to say is for even somebody who is seeking that kind of advice, say he came to his lawyer,

[00:11:17] Speaker 00:
and said, hey, there's this code, this 8065.

[00:11:19] Speaker 00:
I want to know, am I supposed to have these veterinary inspection certificates, and am I required to get them?

[00:11:28] Speaker 00:
I don't think a lawyer can answer that question very easily reading this.

[00:11:31] Speaker 04:
I couldn't.

[00:11:32] Speaker 04:
In addition to person being defined, the term move is also defined in the regulation, and it refers to

[00:11:43] Speaker 04:
those responsible for an animal, quote, departing a premises movement across state lines.

[00:11:50] Speaker 04:
Isn't that a stronger clue as to what persons responsible might mean?

[00:11:57] Speaker 00:
I think it could shed some light.

[00:11:59] Speaker 00:
But I think that, again, departing the premises, I don't know why that is even part of the regulation or the scheme.

[00:12:07] Speaker 00:
Because horses can depart the premises, and probably 90% of the sales that take place at Fabricius

[00:12:14] Speaker 00:
are to other people who live in Colorado and are taking the horses to Colorado.

[00:12:18] Speaker 04:
And so the act of leaving the premises isn't... All of the violations here were interstate transactions.

[00:12:26] Speaker 04:
None of these were interstate transactions where your client was surprised at the ultimate destination.

[00:12:37] Speaker 00:
I don't know whether he was surprised or not about the ultimate destination, but he did know that these people lived in other states when he made those commitments to sell the horses.

[00:12:48] Speaker 00:
Does that matter to your vagueness argument?

[00:12:52] Speaker 00:
I don't think that it does because, again, what

[00:12:57] Speaker 00:
I'm arguing is there should be clarity to put somebody on notice of what it is that they're required to do.

[00:13:05] Speaker 00:
And if I'm supposed to get this certificate of veterinary inspection, I should be able to read this as a common ordinary person and understand what it means.

[00:13:14] Speaker 00:
And at least if I went to my lawyer and asked for advice, it should be clear enough to somebody who has legal training if they read it.

[00:13:20] Speaker 00:
to be able to say it's very clear to me that you're, as a seller, you need to have this.

[00:13:26] Speaker 00:
So I feel that this is vague.

[00:13:30] Speaker 00:
I think right above you it says the reason is the sole of all law.

[00:13:35] Speaker 00:
It should be reasonable and fair so that a person is put on notice that they owe a fine.

[00:13:41] Speaker 01:
And this- Let me interrupt you.

[00:13:42] Speaker 01:
With respect for at least one of the horses, apparently he knew enough to order

[00:13:47] Speaker 01:
an interstate certificate of veterinary inspection, but didn't wait for the results before shipping, letting the horse leave the premises and leave the state.

[00:13:59] Speaker 00:
Correct.

[00:13:59] Speaker 00:
So that was the one horse that went to Wyoming.

[00:14:02] Speaker 01:
And it caused big problems because indeed it was infected.

[00:14:09] Speaker 01:
And it's hard to say he didn't understand he had some obligation when he was in the middle of performing that obligation.

[00:14:17] Speaker 01:
when he let it ship.

[00:14:19] Speaker 00:
Right.

[00:14:20] Speaker 00:
And in that case, I believe he took that horse to Wyoming.

[00:14:24] Speaker 00:
So that's why he got the certificate.

[00:14:27] Speaker 00:
And yes, he should have waited the four days.

[00:14:29] Speaker 00:
But to his credit, my client or his company, as soon as they were aware that the test came back negative, they sounded the alarm and let people know.

[00:14:41] Speaker 00:
So he takes responsibility for that.

[00:14:43] Speaker 00:
There was also a part where he was charged with

[00:14:46] Speaker 00:
14 horses that he purchased in Wyoming and brought back to Colorado.

[00:14:54] Speaker 00:
And again, from the very initial pleading, we indicated that he was responsible for that.

[00:15:01] Speaker 00:
So my clients are responsible rancher, cowboy, business owner,

[00:15:07] Speaker 00:
and does take responsibility, he basically fought this and wanted to have a hearing in front of the ALJ because he really believed that buyers aren't, in his world, the sellers, excuse me, that the sellers aren't responsible for this.

[00:15:25] Speaker 02:
Council, can I ask you what I hope is just a housekeeping question?

[00:15:28] Speaker 02:
Sure.

[00:15:28] Speaker 02:
The entity fined is Fabrizio's Livestock with no LLC.

[00:15:34] Speaker 02:
And the petitioners to this quarter, Jason Fabricius, your client, and then Fabricius Livestock LLC.

[00:15:40] Speaker 02:
Fabricius and the LLC, it's the same entity, right?

[00:15:43] Speaker 00:
There's no question about that.

[00:15:45] Speaker 00:
It is.

[00:15:45] Speaker 00:
There's no distinction.

[00:15:48] Speaker 04:
Thank you, counsel.

[00:15:48] Speaker 04:
Thank you.

[00:15:52] Speaker 04:
Let's hear from the government, Mr. Kennedy.

[00:16:04] Speaker 03:
Thank you, Your Honor.

[00:16:07] Speaker 03:
Kevin Kennedy for the government.

[00:16:09] Speaker 03:
This court should deny the petition for review.

[00:16:11] Speaker 03:
First, Fabrizius Livestock was among the persons responsible for the animals it sold, leaving its premises for interstate movement.

[00:16:19] Speaker 03:
That is evident, whereas here it is undisputed that Fabrizius Livestock conducted the sales from its own premises.

[00:16:24] Speaker 03:
It sold them to out-of-state buyers.

[00:16:27] Speaker 03:
It helped load those horses for interstate movement, and those horses were transported directly across state lines.

[00:16:32] Speaker 03:
Second, that regulation is not unconstitutionally big.

[00:16:36] Speaker 03:
It sets forth a documentary obligation where parties meet a familiar qualitative standard, responsibility for a particular event.

[00:16:45] Speaker 03:
Those sorts of judgment calls are everywhere in the law.

[00:16:47] Speaker 03:
And Fabrizio's livestock for its part is not close to the line.

[00:16:51] Speaker 01:
What's the mens rea requirement?

[00:16:53] Speaker 01:
Does the seller have to know the horse is going to be moved out of state?

[00:17:00] Speaker 03:
There's no sanitary requirement for the imposition of civil penalties under the statute.

[00:17:05] Speaker 03:
If you look, there is a knowledge requirement for the imposition of criminal penalties, but for the imposition of a civil penalty like this one, there's no knowledge requirement.

[00:17:13] Speaker 01:
So for the seller to comply, they need to get the certificate for every horse, whether they think it's staying in Colorado or not.

[00:17:25] Speaker 03:
So I think for the seller to comply, the seller could

[00:17:30] Speaker 03:
indeed obtain the certificate in advance of making the sale or it could enter into a clear contractual relationship with the buyer where it says, you know, I assign you the responsibility for obtaining the certificate and in the event of any interstate movement.

[00:17:46] Speaker 03:
Does that work?

[00:17:47] Speaker 03:
So, you know, I think

[00:17:49] Speaker 03:
To circle back to this case, this court doesn't need to decide whether a contractual assignment would satisfy the regulations, because here the result involves me.

[00:17:59] Speaker 01:
Well, can I assign my legal duty and immunize myself if the reg says, I'm a person responsible, and I say, I don't want that responsibility, it's on you?

[00:18:11] Speaker 01:
Do you think that works?

[00:18:12] Speaker 03:
So I think at least there would be a very good argument not available in this case, that if you look at the regulation, it says that those persons have to ensure that the animals are accompanied by an interstate certificate of veterinary inspection.

[00:18:24] Speaker 03:
And I think where a party has entered into a contract and clearly assigned the responsibility to another party, and then that other party, despite the clear contractual obligation nonetheless doesn't go ahead and get it, there'd be a good argument that the seller had insured that to the best of its abilities that the animals were accompanied by the veterinary inspection certificate.

[00:18:41] Speaker 01:
I'm kind of surprised you're taking that position.

[00:18:43] Speaker 01:
I think you might have a breach of contract action and reimburse them for the fine.

[00:18:48] Speaker 03:
So I think that those private remedies would also potentially be available.

[00:18:52] Speaker 03:
So I'm not taking a firm position on that case.

[00:18:54] Speaker 03:
I think this court need not decide this case to say on these facts where there's no assignment of responsibility, the buyers are out of state, the horses were transported directly across state lines.

[00:19:04] Speaker 03:
It's quite clear that Fabrizio's livestock was the person responsible.

[00:19:07] Speaker 04:
Has the agency given any guidance

[00:19:09] Speaker 03:
sellers other than this regulation?

[00:19:14] Speaker 03:
No, the agency has not sort of engaged in a public education campaign, but I think that's because the regulation itself is quite clear.

[00:19:22] Speaker 02:
It seems that it's inconsistent with the norms and the understanding in the industry.

[00:19:27] Speaker 03:
So on that point, I think it's important to understand the regulation imposes this obligation, the documentary obligation on all parties responsible for the interstate movement.

[00:19:37] Speaker 03:
Any industry is then allowed to comply with that obligation by assigning the obligation to obtain the document to one particular party.

[00:19:46] Speaker 03:
So it might be that in this industry, buyers typically get it.

[00:19:50] Speaker 03:
But that doesn't mean that if buyers do not get it, that the persons responsible do not include the seller, the transporter, and the buyer.

[00:19:58] Speaker 04:
Has the agency ever prosecuted and fined other

[00:20:02] Speaker 04:
sellers under this regulation?

[00:20:03] Speaker 03:
The agency regularly sends out warning letters to sellers and settlement agreements to sellers who have violated this provision.

[00:20:10] Speaker 03:
So Fabrizio's Livestock is hardly alone in being a seller that is coming to task under this regulation.

[00:20:17] Speaker 03:
Has anybody ever been fined six figures for

[00:20:20] Speaker 03:
violation of the regulation?

[00:20:22] Speaker 03:
I'm not aware of the entire enforcement history of this provision.

[00:20:25] Speaker 03:
I do know that it's been enforced against sellers.

[00:20:27] Speaker 03:
I mean, in most cases, I think, as in this case, there was a settlement agreement offer.

[00:20:32] Speaker 03:
Fabrizio's livestock declined to settle for an amount that was below six figures.

[00:20:37] Speaker 03:
And in the other cases, they also get settlement agreements.

[00:20:39] Speaker 03:
And I think in many cases, they enter into them.

[00:20:41] Speaker 03:
So there's been no need to bring it to an administrative complaint.

[00:20:45] Speaker 03:
So is the violator here the LLC?

[00:20:49] Speaker 03:
So the violator here is Fabrizius Livestock at Colorado Corporation.

[00:20:53] Speaker 03:
And I understand Judge Rosman's question to take care of any issue around who is ultimately responsible for paying the judgment in this case.

[00:21:02] Speaker 04:
Well, would Tom Fabrizius be a person responsible also, manager of the business?

[00:21:11] Speaker 03:
I don't think that a fine could be imposed on both.

[00:21:14] Speaker 03:
Why?

[00:21:16] Speaker 04:
For a single violation on both the individual and the corporate entity, I think there's one- Well, actually, is Tom Fabrizio the person responsible for the interstate transportation?

[00:21:28] Speaker 04:
I think so, Your Honor.

[00:21:31] Speaker 04:
What about the cowboys that loaded the truck?

[00:21:34] Speaker 03:
So again, I don't think that this court needs to decide the full extent- No, no, no, no.

[00:21:40] Speaker 04:
Are the cowboys loading the truck a person responsible?

[00:21:43] Speaker 03:
So I think they might be.

[00:21:45] Speaker 03:
It's not necessary.

[00:21:49] Speaker 03:
I would assume that the contractual relationship between the cowboys loading the trucks and the transport.

[00:21:54] Speaker 04:
What about the truck driver?

[00:21:56] Speaker 04:
The transportation company.

[00:21:58] Speaker 04:
Let's just say that's Transport LLC and Tom Smith, the driver.

[00:22:05] Speaker 03:
Are they persons responsible?

[00:22:06] Speaker 03:
Understood, Your Honor.

[00:22:08] Speaker 03:
I think that they would be persons responsible, because the question is about the conduct.

[00:22:12] Speaker 03:
And their conduct was, as a result of their conduct, that the horses left.

[00:22:16] Speaker 02:
So what is the limiting principle, then?

[00:22:18] Speaker 02:
If it's all sources and causes, then how far do you take that?

[00:22:23] Speaker 03:
Well, it's a fact-specific inquiry.

[00:22:25] Speaker 03:
I think if I can just answer Judge Timkovich's question very quickly here.

[00:22:33] Speaker 03:
I think it'd be surprising if the contractual relationship between the cowboy and the transportation entity for which the cowboy was working didn't provide immunity for things like this, such that the person who's really responsible would be the transportation entity.

[00:22:53] Speaker 04:
Maybe so, but I just want to know who's responsible before we decide whether you're going to contract around it.

[00:23:03] Speaker 03:
All the parties that are causally responsible for the horses leaving the premises are persons responsible.

[00:23:09] Speaker 04:
And the buyer LLC and Tom's brother-in-law who bought the horses out of state, the owner of the LLC buyer would be persons responsible.

[00:23:22] Speaker 04:
So another universe.

[00:23:24] Speaker 03:
I mean, I don't think it's necessary to settle the entire universe of persons responsible to answer the question in this case.

[00:23:30] Speaker 04:
No, wait.

[00:23:31] Speaker 04:
We're talking about a vagueness challenge here.

[00:23:33] Speaker 04:
Vagueness challenge, right?

[00:23:34] Speaker 03:
Well, I think this court's cases and the Supreme Court's cases are quite clear that the vagueness challenge concerns the facts in the particular case.

[00:23:42] Speaker 03:
It's generally understood on an as-applied basis.

[00:23:46] Speaker 03:
And a person whose conduct is quite clearly encompassed by the regulation can't be heard to raise a vagueness challenge on the account of some borderline cases elsewhere in the universe.

[00:23:54] Speaker 03:
So I don't think for the vagueness challenge or for the pure regulatory question, this court needs to decide the full scope of the term.

[00:24:03] Speaker 03:
I'll also say there is the ability to contract around this and assign the responsibility to a particular party.

[00:24:12] Speaker 01:
That may be true, but I don't think agencies can rely on people's ability to contract around their vague and overreaching regulations.

[00:24:25] Speaker 03:
So I guess I dispute the characterization of the regulation as vague and overreaching.

[00:24:29] Speaker 01:
Well, but you're saying if it does apply to the cowboy who helps load it, no big deal, because the cowboy probably has an employment contract that indemnifies him.

[00:24:41] Speaker 01:
That's a pretty sophisticated hire of cowboys.

[00:24:47] Speaker 03:
Yeah.

[00:24:47] Speaker 03:
So I think a few other things, Your Honor.

[00:24:49] Speaker 03:
I mean, first, the agency has enforcement discretion, and it uses that enforcement discretion

[00:24:54] Speaker 04:
That's another problem under the vagueness doctrine.

[00:24:58] Speaker 04:
If we have selective enforcement, that's an indicator that a regulation or statute is unduly vague.

[00:25:05] Speaker 03:
I don't think so, Your Honor.

[00:25:07] Speaker 03:
I mean, I think that it would be clear that any of these parties would be persons responsible.

[00:25:11] Speaker 03:
And then the question is whether the agency would, in fact, choose to bring an enforcement action against any of these parties.

[00:25:16] Speaker 03:
And they use that enforcement action to punish what they view as culpable actors, such as Fabrizius Livestock.

[00:25:22] Speaker 03:
But if it were a ranch hand.

[00:25:24] Speaker 04:
In this case, why didn't you go after the buyer?

[00:25:26] Speaker 04:
It seems like they would have been no less culpable than Fabrizio's.

[00:25:31] Speaker 04:
So the buyer's all the transportation company.

[00:25:34] Speaker 04:
Hey, Tom, do you have a certificate of that?

[00:25:36] Speaker 04:
I think all three of those entities would be equally culpable here.

[00:25:40] Speaker 03:
I think the broader record disputes that.

[00:25:42] Speaker 03:
I mean, here, Fabrizio's livestock was a repeat violator of the Animal Health Protection Act implementing regulations.

[00:25:48] Speaker 03:
not only on these 19 occasions with respect to the 50 horses under this provision, but also, as Your Honors noted, under a different provision that required Fabrizio's Livestock to ensure that the animal offered for sale was disease free.

[00:26:00] Speaker 04:
I know, but the reason you have a broad regulation is to make sure that everybody in the transportation chain is alerted that they have some duty to make sure that these certificates are obtained.

[00:26:12] Speaker 04:
I just don't see, you know, maybe Fabrizio's is a repeat offender for all I know.

[00:26:17] Speaker 04:
transportation company, and the buyers are repeat offenders.

[00:26:21] Speaker 03:
Again, so I guess on the vagueness challenge, it is black leather law that this court need not consider that if the regulation is vague in other contexts.

[00:26:32] Speaker 03:
And in fact, any qualitative standard is going to have boundary cases, and those boundary cases don't render a regulation unconstitutionally vague, where it has a clear central scope.

[00:26:43] Speaker 03:
And that clear central scope is this case, where for Brazil's livestock,

[00:26:47] Speaker 03:
It sold the horses to out-of-state buyers.

[00:26:50] Speaker 03:
It helped load those horses on its premises.

[00:26:52] Speaker 03:
The relevant premises that it was departing from was Fabrizio's livestock premises, and the horses directly were transported across state lines.

[00:27:00] Speaker 03:
So I think it's quite clear that Fabrizio's livestock was among the persons responsible in this case.

[00:27:05] Speaker 03:
It was on notice of that.

[00:27:07] Speaker 03:
And this court need not decide.

[00:27:08] Speaker 03:
Those other cases decide either the regulatory question or the constitutional question.

[00:27:15] Speaker 04:
I mean, is there a standard practice about who obtains these certificates?

[00:27:24] Speaker 04:
Mr. Grant suggested that it's traditionally the buyer, because the buyer controls kind of the ultimate destination.

[00:27:33] Speaker 03:
So I don't think the record supports that broad assertion of industry practice here.

[00:27:38] Speaker 03:
The portion of the record that my friend on the other side points to is about sort

[00:27:44] Speaker 03:
what happens at auction, when there's a sale at auction.

[00:27:46] Speaker 03:
But here, there was a one-to-one sale from Fabrizio's Livestock Premises.

[00:27:51] Speaker 03:
So I think, broadly speaking, the record here does not indicate a industry practice about who typically gets these.

[00:27:57] Speaker 03:
But again, I don't think that's relevant to the regulatory question, which is whether you're a person responsible for the animals leaving the premises.

[00:28:04] Speaker 03:
And then, of course, industries are allowed to assign that responsibility, that obligation,

[00:28:10] Speaker 03:
to the buyer, and it might be that the buyer generally gets it, but if the buyer does not get it, that doesn't change the fact that all the other parties were responsible for the horses leaving the premises and are thus liable under the regulation.

[00:28:21] Speaker 04:
Is there a causation element here?

[00:28:24] Speaker 04:
Say, Fabrizio sells it to an out-of-state buyer, but the buyer takes them from the premises and temporarily corrals them in-state, and then they continue

[00:28:39] Speaker 04:
across state lines at some point, is Fabrizius a person responsible in a facts scenario like that?

[00:28:47] Speaker 03:
Yeah, so I think there'd be some question in that case, whether the relevant premises is Fabrizius Livestock's premises, or it was where the horses were corralled.

[00:28:55] Speaker 03:
So if you're thinking about who's responsible for the horses leading a premises for interstate movement, in that case it might be the later destination, and in which case it would seem Fabrizius Livestock, or I guess the seller in that case, because that's not the facts here,

[00:29:08] Speaker 03:
would have been responsible.

[00:29:09] Speaker 04:
So there is a causation element?

[00:29:12] Speaker 03:
Yeah, I think that the way we read the text is it's whose conduct resulted in the departure of the animals for interstate movement.

[00:29:19] Speaker 03:
So that does speak in sort of roughly causal terms.

[00:29:25] Speaker 03:
But again, that causal standard is quite plainly met on the facts here.

[00:29:29] Speaker 03:
So the horses were not.

[00:29:32] Speaker 03:
It is undisputed that the horses were transported directly across state lines here.

[00:29:39] Speaker 03:
If the court has no further questions, I urge the court to deny the petition for review.

[00:29:45] Speaker 03:
Thank you, counsel.

[00:29:46] Speaker 03:
Counsel are excused and the case is submitted.