A determination as to whether Justify should be disqualified from the 2018 Santa Anita Derby will hinge on whether a panel of stewards believes the California Horse Racing Board was required to adhere to a regulation despite the recommendation of its equine medical director to dismiss a post-race finding for an environmental contaminant, according to a testimony in a hearing conducted on Thursday. During the four-hour hearing, attorneys for the horse’s connections and counsel for the California Horse Racing Board sparred over whether Justify should have been automatically disqualified from his win in the $1 million race due to the post-race finding of a trace amount of scopolamine, an environmental contaminant, because the substance was listed at the time in California regulations as requiring automatic disqualification.. The CHRB had initially dismissed the positive, and that of another horse that tested positive on the same day, Hoppertunity, after concluding that the substance was accidentally ingested and that the amount did not have a pharmacological impact on either horse’s performances – conclusions that both sides accepted as findings of fact at the outset of the hearing. But the case was re-opened after Mick Ruis, the owner-trainer of Bolt d'Oro, the second-place horse in the Derby, filed suit against the CHRB and then reached a settlement requiring a re-hearing of the case. Under CHRB rules, a positive for a Class 1, 2, or 3 substance requires a horse to be disqualified. Scopolamine was listed as a Class 3 substance at the time of the Derby, but it was changed to a Class 4 substance in the CHRB regulations as of Jan. 1, 2019. The Association of Racing Commissioners International, which issues classification guidelines to state racing commissions, changed scopolamine from a Class 3 substance to a Class 4 at the end of 2016. Complicating the legal case, the CHRB rules also state that the board should use the classifications from the ARCI. Under cross-examination, the board’s equine medical director, Dr. Rick Arthur, acknowledged that scopolamine was listed in the CHRB’s regulations as a Class 3 substance at the time of the Derby. But Arthur also stressed that the board could not get penalty classifications changed in a timely manner due to “cumbersome” processes mandated by California law, and that he believed it would not be fair to use the CHRB classification when the ARCI had updated its categorization 18 months prior to the 2018 Santa Anita Derby. “It is inherently unfair to hold someone to a classification that is outdated when that classification is solely outdated because of regulatory inefficiency,” Arthur said. Robert Petersen, who represented the CHRB in the hearing and was put in the unusual position of questioning the decision of the CHRB’s own equine medical director, said that the CHRB classification at the time of the race should be the only factor considered by the stewards to decide the case. “The only issue left is whether scopolamine was a Class 1, 2, or 3 substance at the time of the race,” Petersen said. Craig Robertson, the attorney for Bob Baffert, the trainer of both Justify and Hoppertunity, said that the case had been fully investigated in 2018, and that the board’s decision to dismiss the findings without issuing a notice of a violation should stand. “This was fully and finally adjudicated in 2018,” Robertson said. “It would be a dangerous path to go down for the stewards to say we are considering overturning the result of a race that occurred 2 1/2 years go.” Robertson also said that California rules tell stewards that they “shall consider mitigating circumstances” when determining penalties. In addition, he asked Dr. Arthur whether the board had dismissed similar cases in the past, and Dr. Arthur answered that the board had thrown out a rash of positives for zilpaterol in 2017. Zilpaterol is currently in a higher penalty classification than scopolamine, and Dr. Arthur testified that zilpaterol, like scopolamine at the time of the 2018 Derby, was a Class 3 at the time of the positives. “It was the correct decision, it was the fair decision,” said Dr. Arthur, about his recommendation to dismiss the scopolamine cases. Robertson later called Dr. Steven Barker, the former director of the Louisiana State Racing Commission laboratory, and asked him whether he agreed with the decision the CHRB made to initially dismiss the cases. Dr. Barker answered that the commission “always” dismissed cases involving environmental contamination without issuing penalties. “I would have made the same recommendations as Dr. Arthur made,” Dr. Barker testified. “Presented with the same data, [the Louisiana commission] would have done the same thing.” On a separate legal tack, Amanda Groves, an attorney representing Justify’s owners and jockey, said that the re-opening of the case was itself a violation of California statute, contending that a final decision by a regulatory agency cannot be reopened without a challenge issued within 30 days. Ruis, the owner-trainer whose lawsuit led to the Thursday hearing, did not file his lawsuit until four months after the New York Times reported on the CHRB decision, which had been made in executive session. “The time to re-open has long since passed under administrative law,” Groves said. But those arguments may not have much bearing on the eventual decision by the stewards, which will now deliberate over the case. John Herbuveaux, the steward acting as chairman of the hearing panel, said at the beginning of the hearing that the CHRB classification at the time of the 2018 Derby was the most important factor for stewards to weigh. “To me this is the heart of the case, this is the meat of the matter,” Herbuveaux said.