CRITICAL UPDATE! Caring for horses during a public health crisis: are your workers a critical workforce? In Oklahoma, YES!

The U.S. Department of Homeland Security critical infrastructure sector guidelines fail to identify horse management facilities as critical infrastructure. On March 25, 2020, I wrote an article highlighting that failure.  On that same day I, along with many others in the horse industry, solicited Governor Stitt to include horse management facilities as essential and critical businesses.  I am very happy to share that Governor Stitt has responded positively by including the following sectors to “Food and Agriculture” as critical infrastructure sectors in Oklahoma via a published memorandum[1]:

      • FOOD AND AGRICULTURE
        • Farm supply and hardware stores
        • Groves, greenhouses, nurseries, and vineyards
        • Agriculture, Forestry, Fishing and Hunting
        • Food manufacturing
        • Beverage and tobacco product manufacturing
        • Manufacturing of fiber and forestry products
        • Veterinary services
        • Certified farmers’ markets, farm and produce stands
        • Food cultivation, including farming, livestock and fishing
        • Support of agricultural production including manufacturers,      processors, sellers, transporters, and suppliers of livestock, poultry,  feed, seed, water, fertilizer, herbicides, or insecticide and those        that care for animals, crops, groves, greenhouses, nurseries,            vineyards, forests, farms, and ranches
        • Hardware stores, farm stores, and garden centers

To understand how these additions specifically apply to horse management facilities we look to Oklahoma statutes.  First, Title 2 of the Oklahoma Statutes governs “Agriculture,” and within that title you will find statues pertaining to livestock.  The Agriculture Code defines livestock as “… any cattle, bison, horses, sheep, goats, asses, mules, swine, domesticated rabbits, and chickens, turkeys, and other domesticated fowl, and any animal or bird in captivity.”  Okla. Stat. tit. 2, § 1-3(7).  This is great news for horse management facilities because when the Governor included “Agriculture,” as defined under Oklahoma law, the executive order unquestionably included horse management facilities!

But taking a belt and suspenders approach, the second addition of “support of agriculture production … and those that care for animals” can also be interpreted as including horse management facilities specifically.  First, we assume that you are meant to read the entire section as a whole where the clause “and those that care for animals relates back to the preceding clause support of agricultural production.  Under this interpretation, you would read this as “support for agriculture production including those that care for animals.”   Next, we look to Oklahoma statues to define agricultural production to determine if horses are an agricultural product.  Oklahoma statute defines agricultural product in a couple of places.  One such statute defines agricultural product as “horticultural, viticultural, nut, dairy, livestock, poultry, bee, and any other farm products.”  Okla. Stat. Ann. tit. 2, § 17-3 (1).  You will notice that “livestock” is an agricultural product, and we have already determined that horses are livestock in Oklahoma.  However, a legitimate argument can be made that this statute was meant to apply to breeding horses and not to the stabling of non-breeding horses.

To address the issue of agricultural production not applying to the keeping of non-breeding horses, we can take a different interpretation of the above section.  Instead of reading the section as a whole, you can make the argument that the conjunctive and signifies the addition of the distinct category of critical infrastructure – “those that care for animals” – which is meant to be separate and apart from the “support of agricultural production.”  Under this interpretation we look to Oklahoma statute to define “animal.”  Animal under the Agriculture Code has the same definition as livestock. Therefore, under Oklahoma law a horse is defined as both an animal and livestock and gets the benefit of all statutes that pertain to livestock and/or “animals.”  With that said, under this interpretation, horse management facilities, including those that care and keep non-breeding horses, are defined by Oklahoma as critical infrastructure businesses.

Now with the most pressing issue resolved, I continue to call for the Oklahoma Department of Agriculture to adopt the guidelines published by the Kentucky Department of Agriculture’s Office of State Veterinarian that are designed to assist horse management facilities to continue to care and keep horses during this public health emergency while protecting the health of both the horse owners and barn workers.  I will continue to update the Oklahoma horse industry as the situation changes.

This article does not constitute legal advice and is intended to be used for educational purposes only.

About the Author

Mary Westman is an Oklahoma attorney with an MBA, Morgan horse breeder and registered nurse.  A native of West Virginia, she now lives with her husband, David, in Norman, Oklahoma. She can be contacted at mary@marywestmanlaw.com

[1] https://www.durant.org/DocumentCenter/View/1374/AMENDED-EXECUTIVE-MEMORANDUM-2020-01


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