Oversight Committee and Comer ask Trump to delay enforcement of new rule

Wednesday, January 22, 2025

 

The Committee on Oversight and Government Reform and its Chairman, James Comer (R-KY) sent a letter to the Trump-Vance Transition team pointing out the major flaws in the Horse Protection Act Rule that was finalized during the Biden Administration and is set to take effect February 1, 2025. In that letter Comer asks of Trump Transition team members Howard Lutnick and Linda McMahon urge them “to use all available tools to delay enforcement of this rule, rescind any prior guidance issued under the Biden Administration, and take any necessary steps to ultimately abolish the rule and restore a commonsense approach to enforcing the HPA.”

The Committee on Oversight and Government Reform launched an investigation in to the USDA’s enforcement of the HPA late last year.  The committee found during its investigation that USDA-APHIS tried to enforce the new rules almost a year before their effective date.  The Committee also had significant concerns regarding the current enforcement process, particularly focusing on the APHIS inspectors’ behavior and decision-making as well as a lack of transparency and accountability.  The investigation also discovered the potential for bias and retaliatory behavior by USDA inspectors, a claim that has been made by industry participants for years.

The letter was very clear on the need to abolish the rule.  “The Committee urgently calls for the incoming Trump Administration to take immediate steps upon assuming office toward abolition of the new Horse Protection Amendments rule, which is set to take effect on February 1, 2025.”  The committee also pointed out that enforcement actions already taken by USDA prior to this, “demonstrate a troubling disregard for procedural fairness and stakeholder engagement.”  Comer also expressed the rule undermines the due process protections for Americans.

In addition to the Committee’s request of the Trump Administration the industry, through plaintiffs The Tennessee Walking Horse National Celebration, Tom Gould and Kimberly Lewis, have sued the USDA regarding the new rule.  A final ruling from Judge Kacsmaryk in the Northern District of Texas should come prior to the February 1st effective date of the rule.  If the industry is successful in its challenge in federal court, the rule would not take effect and the Trump Administration would not have to take the steps requested by the Oversight Committee as the rule would be rescinded by the court.



TWH NEWS ALERT: REGULATORY FREEZE PENDING REVIEW January 20, 2025

REGULATORY FREEZE PENDING REVIEW

January 20, 2025

By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby order all executive departments and agencies to take the following steps:
(1) Do not propose or issue any rule in any manner, including by sending a rule to the Office of the Federal Register (the “OFR”), until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule. The department or agency head may delegate this power of review and approval to any other person so appointed or designated by the President, consistent with applicable law. The Director or Acting Director of the Office of Management and Budget (the “OMB Director”) may exempt any rule that he deems necessary to address emergency situations or other urgent circumstances, including rules subject to statutory or judicial deadlines that require prompt action.
(2) Immediately withdraw any rules that have been sent to the OFR but not published in the Federal Register, so that they can be reviewed and approved as described in paragraph 1, subject to the exceptions described in paragraph 1.
(3) Consistent with applicable law and subject to the exceptions described in paragraph 1, consider postponing for 60 days from the date of this memorandum the effective date for any rules that have been published in the Federal Register, or any rules that have been issued in any manner but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise. During this 60-day period, where appropriate and consistent with applicable law, consider opening a comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by the rules postponed under this memorandum, and consider reevaluating pending petitions involving such rules. As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment, proposed rules further delaying such rules beyond the 60-day period.
(4) Following the postponement described in paragraph 3, no further action needs to be taken for those rules that raise no substantial questions of fact, law, or policy. For those rules that raise substantial questions of fact, law, or policy, agencies should notify and take further appropriate action in consultation with the OMB Director.
(5) Comply in all circumstances with any applicable Executive Orders concerning regulatory management.
As used in this memorandum, “rule” has the definition set forth in section 551(4), title 5, United States Code. It also includes any “regulatory action,” as defined in section 3(e) of Executive Order 12866 of September 30, 1993, as amended, and any “guidance document” as defined in section 2(b) of Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents), when that order was in effect. Thus, the requirements of this memorandum apply not only to “rules” as defined in section 551(4) of title 5, but also to any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking. They shall also apply to any agency statement of general applicability and future effect that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.
The OMB Director shall oversee the implementation of this memorandum, and any communications regarding any matters pertaining to this review should be addressed to the OMB Director. The OMB Director is also authorized to establish a process to review pending collections of information under the Paperwork Reduction Act of 1995, as codified in chapter 35, title 44, United States Code, and to take actions that the OMB Director deems appropriate based on that review, consistent with applicable law.
Should actions be identified that were undertaken before noon on January 20, 2025, that frustrate the purpose underlying this memorandum, I may modify or extend this memorandum, to require that department and agency heads consider taking steps to address those actions.
The OMB Director is authorized and directed to publish this memorandum in the Federal Register.
This memorandum shall be implemented consistent with applicable law.


The Horse Protection Act as it relates to the Commerce Clause

The Horse Protection Act: Analyzing Its Relationship with the Commerce Clause

by WHC Publisher Tommy Williams

tommywhc@aol.com

   The Horse Protection Act (HPA), enacted in 1970, was designed to eradicate the practice of soring—an abusive training method used primarily to accentuate gait in Tennessee Walking Horses and related breeds. Although the act serves a crucial role in animal welfare, its enforcement and implications extend into the realm of constitutional law, particularly concerning the Commerce Clause of the United States Constitution. This essay seeks to explore the HPA in the context of the Commerce Clause, which grants Congress the power to regulate interstate commerce, and analyze the broader implications for animal welfare legislation.

   The late 1960s and early 1970s marked a growing awareness of animal rights and welfare issues in the United States. The soring of horses, a painful process that involved irritating the skin of a horse’s legs to create an extravagant gait, became a focal point of public outcry. This backlash catalyzed the establishment of the HPA, aimed at preventing the exploitation of horses and promoting humane treatment. The HPA forbids the exhibition at horse shows, sales, or auctions of horses subjected to soring, and it establishes a system for the inspection of horses. Importantly, the Act also provides for the involvement of the USDA in regulating horse shows, ensuring compliance with the established standards.

   The Commerce Clause, found in Article I, Section 8 of the Constitution, allows Congress to regulate commerce among the states, with foreign nations, and with Indian tribes. Over the years, this provision has been interpreted broadly, enabling Congress to pass a variety of laws that address issues crossing state lines—ranging from economic transactions to social issues like civil rights and, notably, animal welfare. The central question arises: how does the HPA relate to the Commerce Clause?

   The enforcement of the HPA creates an intricate interplay between animal welfare and commerce. Firstly, the act directly affects the commerce of racehorses, show horses, and related activities, as the prohibition of sored horses in competitive environments imposes regulations on breeders, trainers, and exhibitors involved in the horse industry. This regulation aligns with the purposes of the Commerce Clause, as horse shows and sales frequently involve participants from multiple states, thus constituting interstate commerce. By regulating this sector, the HPA seeks to ensure fair practices and humane treatment across state lines.

   The HPA’s relationship with the Commerce Clause has been subjected to judicial scrutiny. Courts have often upheld the application of the HPA based on the premise that soring practices have a national impact on the horse industry. For example, in cases regarding the legality of certain training techniques or horse show practices, judges have ruled that Congress possesses the authority under the Commerce Clause to legislate against practices that not only harm individual animals but also have repercussions for commerce as a whole.

   Moreover, these judicial interpretations underscore a critical aspect of the HPA’s enforcement—it must demonstrate a clear connection to interstate commerce to withstand constitutional challenges. Courts have noted that the HPA’s provisions help maintain the integrity of the horse show industry, which is vital to the economy, thereby justifying federal regulation under the Commerce Clause.

   The analysis of the HPA in context with the Commerce Clause offers important lessons for future legislation concerning animal welfare. As societal values evolve regarding the treatment of animals and the ethical implications of animal husbandry practices, there is a growing demand for comprehensive laws that safeguard animal rights. The HPA serves as a potential model for future regulations aimed at broader animal welfare issues, asserting that humane treatment is not only a moral imperative but also an economic necessity.

   However, new legislation must be crafted carefully to respect constitutional boundaries. Future laws benefiting animal welfare would ideally incorporate explicit connections to interstate commerce, thereby ensuring they withstand challenges and reflect the plurality of societal values regarding animal exploitation and welfare.

   In summary, the Horse Protection Act represents a significant intersection of animal welfare and constitutional law, particularly through its engagement with the Commerce Clause. By prohibiting soring practices that affect the interstate horse industry, the HPA underscores the government’s role in fostering humane treatment while navigating the complexities of commerce. As society continues to evolve in its perspective on animal rights, understanding the foundations of existing laws like the HPA and their implications for future legislation will be crucial for developing effective and constitutionally sound regulations that promote humane standards across industries. The interplay between law, commerce, and ethical treatment encapsulated in the HPA serves as a benchmark for expanding protections for animals in the American legal landscape.



American Horse Council formally requests USDA delay new HPA Regulations

 

EIS-Featured

American Horse Council formally requests USDA delay new HPA Regulations

Jan 11, 2025

Washington, D.C. – Julie Broadway, President of the American Horse Council, released the following statement on the pending implementation of the revised Horse Protection Act (HPA) regulation:

 

“The American Horse Council (AHC) has formally requested that the United States Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) delay the implementation of the revised Horse Protection Act regulation for 60 days. The AHC finds the agency is not ready to implement and/or enforce the revised regulation in a fair and consistent manner. The regulation is currently scheduled for implementation on February 1, 2025.”

It is unfortunate that we must ask for this 60-day delay. The AHC and its member organizations have long supported the development and implementation of strong regulations to protect the health and welfare of horses that are vulnerable to the illegal practice of soring. We stand firmly in that position. However, as a result of consultations with USDA-APHIS that formally began in May 2024, after the final regulation was published, and recent correspondence on January 3, 2025, we remain convinced that clarity, accessibility, resources, guidance, and training—all the elements required for a successful implementation of the revised regulation—are lacking in the agency.

The process of the regulation’s implementation falls short of what the equine industry very much needs and deserves from the USDA-APHIS.

To date, the USDA-APHIS has still not addressed big-picture, fundamental concerns on how the regulation applies to certain disciplines, or how event managers will submit the required notifications and reports, and it has not disclosed details on the availability and training of inspectors. Inspector training needs to be institutionalized with comprehensive and well-structured training materials to ensure staff interpretations of the regulation are guided by clear definitions and standard operating procedures, removing subjectivity and providing continuity of enforcement standards and procedures. We are especially concerned with the seemingly substitute of “hands-on” training to online instruction.

Without answers to these questions, the equine community is attempting to figure it out on our own. We are left with crossing our fingers and hoping our inventory of horseshoes will be our lucky charms to avoid noncompliance or a violation and result in penalties and fines.

By setting clearer guidelines, publishing understandable and accessible guidance documents, and offering informational briefings, the USDA-APHIS can empower the industry with the tools it needs for compliance and a sense of confidence.

Instead, we are currently navigating an environment where the lack of clear information presents opportunities for individuals and organizations to purposely take advantage of the weaknesses of a vague and complex implementation process to potentially undermine the regulation and its foundational law.

The AHC is in full support of the protections afforded by the HPA.

The AHC is committed to working with the agency to improve the implementation of this regulation to address specific cases of soring. In that spirit, we recommend the USDA-APHIS do the following to:

  • Postpone enforcement of the regulation EXCEPT for the provisions banning devices on Tennessee Walking Horses and racking horses. These breeds, which historically have been subjected to soring, are the focal point of the regulation. The prohibited action devices, artificial extension of toe length, pads, wedges, and lubricants  on the limbs or feet of Tennessee Walking Horses and racking horses (with exceptions for approved therapeutic uses of artificial extension of toe length, pads, wedges, and substances) have direct consequences for the health and welfare of these breeds.
  • Encourage voluntary compliance with the other provisions of the regulation to allow for a test run for data collection, training, and communication.
  • Organize additional meetings for public engagement, such as webinars with sufficient time for questions and answers, videos on the inspection process, and workshops.
  • Consult with breed and discipline organizations to develop a thorough understanding of the events that the agency intends to cover.
  • Publish a robust and timely FAQ resource.
  • Create an online reporting portal.

The AHC has a long and successful history of working with the equine industry and amateur community on the implementation of numerous regulations. Typically, the biggest challenge is educating those who are wholly unfamiliar with their new compliance obligations. We are committed to similarly educating the agency and working toward a desired outcome.”

The American Horse Council (AHC) is a U.S. advocacy organization based in Washington, D.C., that represents individual members, small businesses, and more than 130 equine organizations before Congress and the federal regulatory agencies. AHC member organizations include breed registries, national and state equine associations, state horse councils, recreational associations, and organizations representing racetracks, equestrians, horse shows, veterinarians, farriers, rodeos, and other equine-related stakeholders.



Congress Subpoenas Key USDA Official Over Arbitrary Enforcement of Horse Protection Act-TRENDING

Rep. Comer Subpoenas Key USDA Official Over Arbitrary Enforcement of Horse Protection Act

Wednesday, November 20, 2024

 

Editor’s Note: The following is a press release issued by the Committee on Oversight and Accountability and Chairman Rep. James Comer (R-Ky.)

 

WASHINGTON— House Committee on Oversight and Accountability Chairman James Comer (R-Ky.) today issued a subpoena to a key official at U.S. Department of Agriculture (USDA) to further investigate the USDA’s arbitrary enforcement of the Horse Protection Act (HPA) and the final rule titled Horse Protection Amendments. Information obtained by the Oversight Committee, along with recent actions at Tennessee Walking Horse shows, reveals USDA’s Animal and Plant Health Inspection Service (APHIS) may be exceeding its authority in inspections related to horse shows. Today’s subpoena compels Dr. Aaron Rhyner, the Assistant Director of APHIS, to appear for a deposition to assist in the Committee’s investigation and determine whether new legislation is needed to ensure fair and consistent enforcement by USDA.

 

“The Committee initially requested documents and information from USDA regarding these matters on August 9, 2024. Among the materials sought by the Committee were lists of the horse shows attended by USDA’s Animal and Plant Health Inspection Service (APHIS) inspectors, communications between APHIS officials and inspectors or other stakeholders in the horse show industry, documents and communications relating to HPA enforcement, and documents and communications related to the lawsuit filed by horse trainers against USDA. A response to the Committee’s requests was required by August 23. USDA failed to respond by the deadline or even acknowledge receipt of the Committee’s letter until several weeks later,” wrote Chairman Comer.

 

The Committee received allegations that the Assistant Director of USDA’s APHIS sent an e-mail to horse show representatives detailing new competition inspection requirements just two hours prior to a competition, without warning or prior notification of forthcoming guidance. On August 9, 2024, Chairman Comer launched an investigation and called on the USDA Office of the Inspector General to review the Department’s enforcement of the HPA. On October 8, 2024, Chairman requested that APHIS Director Dr. Rhyner be made available for a transcribed interview. However, USDA continues to refuse to provide the requested information and has not made Dr. Rhyner available for the interview.

 

“This lack of cooperation by USDA raises additional questions about the transparency and accountability of USDA’s operations related to enforcement of the HPA and the enactment of the final rule,” continued Chairman Comer. “It has now been over four weeks since the Committee’s initial request for the transcribed interview, and USDA has failed to make you available for a transcribed interview or a briefing. As a result, attached is a subpoena for a deposition pursuant to Rule XI, clause 2(m)(1)(B) of the Rules of the House of Representatives and Rule 12(g) of the Committee’s Rules. You are obligated to appear before the Committee on December 9, 2024.”

 

The letter and subpoena to APHIS Dr. Aaron Rhyner can be found here.



Tennessee Delegation Members lead letter with Rep. Rose to USDA defending Tennessee Walking Horse Industry Friday, August 9, 2024

Tennessee Delegation Members lead letter with Rep. Rose to USDA defending Tennessee Walking Horse Industry
Friday, August 9, 2024

 U.S. Representative John Rose (TN-06) and six other Members of Congress, five from the Tennessee Delegation, led a letter to the U.S. Department of Agriculture (USDA) outlining serious concerns about USDA Veterinary Medical Officer (VMO) inspections and violation reports from recent Tennessee Walking Horse shows.

Representative Rose, who has spearheaded the defense of the Tennessee Walking Horse industry in Congress, urged USDA Secretary Tom Vilsack and Animal and Plant Health Inspection Service (APHIS) Administrator Michael Watson to reconsider the assignments of VMO Kerry McHenry and VMO Amy Adams in the letter.

U.S. Rep. John Rose released the following statement:

“Despite attempts by USDA to decimate the Tennessee Walking Horse industry and those that depend on it, they will not go down without a fight,” said Rep. Rose. “The Tennessee Walking Horse Industry is rooted in tradition and strives to uphold the sensible and reasonable regulations in the Horse Protection Act. The industry condemns bad actors who are tarnishing its reputation. However, USDA is overstepping its boundaries and must reconsider the science behind horse inspections and VMOs’ authority and allow the Tennessee Waking Horse Industry the ability to continue to thrive.”

Read an excerpt from the letter here:

“Since the first notable Tennessee Walking Horse National Celebration in 1939, the Walking Horse industry has evolved and has embraced the provisions established in the HPA. Tennessee Walking Horse shows are the most regulated equestrian events across the U.S. Each animal exhibited is thoroughly inspected by a USDA-approved Designated Qualified Person (DQP) or Horse Industry Organization (HIO) representative or APHIS VMO prior to competing.

“The Tennessee Walking Horse and National Celebration event are vital contributors to the U.S. job market and economy. The Tennessee Walking Horse industry provides approximately 20,000 jobs to the market and has a nearly $3.2 billion economic impact. Walking Horses reside in all 50 states, and shows are held across the U.S. annually.  The Tennessee Walking Horse National Celebration is the largest Walking Horse show globally, hosting roughly 100,000 fans from more than 40 states annually over eleven days in Shelbyville, TN.  With over 1,300 animals expected, the late August event is a widely respected national show with nearly a century of deep-rooted traditions.

“As we approach the historic Celebration, breeders, trainers, exhibitors, and supporters are threatened by erroneous inspections. Compliance, safety, and wellness are integral to the traditions and standards upheld by the Walking Horse industry. However, outlier inspectors are using aggressively subjective measures of inspection and disqualifying compliant horses. We urge you to reconsider the assignments of VMO Kerry McHenry and VMO Amy Adams. Thank you for your immediate consideration of this important issue.”

Read the full letter here.

The letter was also led by Reps. Diana Harshbarger (TN-01), Chuck Fleischmann (TN-03), Scott DesJarlais (TN-04), Andy Ogles (TN-05), and Mark Green (TN-06). Rep. Harold Rogers (KY-05) also signed the letter.

Background:

The Horse Protection Act (HPA) was enacted in 1970 to outlaw the practice of “soring” horses. Despite being illegal for over 50 years, a very small, limited number of individuals still engage in soring, leading an overly ambitious USDA to establish stricter regulations for the compliant majority. The Tennessee Walking Horse industry has embraced HPA provisions, and the shows are among the most heavily regulated equestrian events in the United States, with thorough inspections before and after competitions.

In March 2024 during the National Trainers’ Show, the USDA unexpectedly announced plans to change inspection tactics, which caused major confusion. Since then, two specific VMO inspectors, Kerry McHenry and Amy Adams, have issued a disproportionately high number of violations, disrupting standard protocols, leading Members to send this letter to USDA Secretary Vilsack and APHIS Administrator Watson.

U.S. Representative John Rose is currently serving his third term representing Tennessee’s Sixth Congressional District and resides in Cookeville with his wife, Chelsea, and their two sons, Guy and Sam. The Sixth District includes Cannon, Clay, Cumberland, DeKalb, Fentress, Jackson, Macon, Overton, Pickett, Putnam, Smith, Sumner, Trousdale, Van Buren, and White counties as well as portions of Davidson, Scott, Warren, and Wilson counties. Representative Rose is an eighth-generation farmer, small business owner, and attorney, and currently serves on the House Financial Services Committee and House Agriculture Committee



Despite Pending Lawsuits, APHIS is hiring New HPIs

APHIS seeks equine professionals for inspector roles

July 31, 2024

One of the changes to Horse Protection Act (HPA) regulations earlier this year, in an effort to end horse soring, meant the elimination of industry self-regulation and the role of lay person inspectors at horse shows, exhibitions, sales, and auctions.

 

Going forward, only U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) inspectors and independent non-APHIS–employed horse protection inspectors (HPIs) who are screened, trained, and authorized by APHIS will have inspection authority, beginning with the 2025 show season.

 

These third-party inspectors must be veterinarians, veterinary technicians, or state or local animal welfare officers; all must have equine knowledge and experience.

 

 

Updates to the Horse Protection Act remove the ability for horse industry organizations to train and license inspectors for horse shows, exhibitions, sales, and auctions. Instead, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service will screen and train applicants, preferably veterinarians, to be horse protection inspectors.

“This puts the welfare of these competing horses in the best trained, knowledgeable, ethical, non-biased, and most qualified hands possible to conduct these important inspections,” said Keith Kleine, director of industry relations with the American Association of Equine Practitioners.

 

Individuals interested in applying to become an HPI can complete an application on the APHIS website.

 

While HPIs may not conduct inspections until the new rule goes into effect February 1, 2025, APHIS began the HPI application process on June 7, so that training and authorization of HPIs can occur beforehand.

 

Currently, horse show managers can voluntarily hire USDA-trained lay inspectors, known as designated qualified persons (DQPs) as chosen by certain horse industry organizations (HIOs). APHIS also has its own veterinary medical officers (VMOs) who perform inspections at some venues.

 

“While APHIS attended only a fraction of the events at which DQPs were appointed to inspect horses, APHIS consistently reported much higher rates of noncompliance at these events based on its VMO inspection findings when compared to DQP findings. Moreover, virtually all noncompliances were found in padded horses competing in the Performance division,” according to the Federal Register notice. This is also backed up by APHIS inspection data from 2017-22.

 

Soring is the practice of applying a substance or mechanical device to a horse’s forelegs that will create enough pain that the horse will exaggerate its gait to relieve the discomfort. The resulting high-stepping running walk, or “big lick,” is rewarded by horse show judges, although showing a sored horse is illegal.

 

Tennessee Walking Horses commonly suffer from the practice of soring. Other gaited breeds, such as Racking Horses, Spotted Saddle Horses, Rocky Mountain Horses, and Missouri Fox-Trotters, may also suffer from soring.

 

“The gaited horse discipline(s) and the equine industry cannot afford the risks and costs of continued ineffective supervision and enforcement of the Horse Protection Act,” said Kleine. “The independent inspection process in the new rule should strengthen the competition at these shows and benefit the many owners and trainers who do right by their animals.”

 

This change is one of the recommendations from the 2021 National Academy of Sciences, Engineering, and Medicine Consensus report regarding, “A Review of Methods for Detecting Soreness in Horses.”

 

Now, all regulatory requirements concerning DQPs and HIOs will be removed. APHIS will take on program administration, HPI training, and HPI disciplinary actions as needed for enforcing the Horse Protection Act.

 

Because horse protection inspectors are not USDA employees, they set their own rates and schedules. At an event, the HPI will, at a minimum, physically inspect every Tennessee Walking Horse and Racking Horse in each gaited class. They will also inspect the first-place finisher of each gaited class. Each HPI will follow APHIS procedures to detect and diagnose soring and the use of any prohibited substances or devices, according to the USDA.

 

HPI applicants must abide by a Code of Conduct that includes complying with USDA-related laws, regulations, and policies. Applicants must agree to document and report all noncompliances



Walking Horse Industry files Lawsuit Challenging Rule

Walking Horse Industry Files
SUMMARY OF NEW LAWSUIT CHALLENGING

HORSE PROTECTION ACT PROPOSED RULE

On July 1, 2024, the Tennessee Walking Horse National Celebration Association (“Association”), along with horse owners Kim Lewis and Tom Gould sued the U.S. Department of Agriculture (“USDA” or “Agency”) challenging a Final Rule (“Rule”) amending the Agency’s current regulations enforcing the Horse Protection Act (“HPA”). The Rule makes a number of sweeping changes to the existing regulations that would not only fail to address soring in any meaningful way, but would also potentially devastate the Tennessee Walking Horse show industry. The lawsuit was brought to stop these changes.

The Ban on Action Devices and Pads is Unlawful. The lawsuit argues that USDA’s decision to ban the use of all action devices and pads is beyond its authority under the HPA and is arbitrary and capricious. Numerous studies—including those USDA has, itself, relied on—show that this equipment does not cause soring. The USDA even admits that the pads and action devices do not cause soring. USDA tries to justify the ban by arguing that there is a higher incidence of soring violations found among horses that compete using this equipment. But the data on which the USDA based that conclusion is fatally flawed. It was not based on a random sample of horses using that equipment. Instead, it was based on inspection results for a set of horses singled out for inspection because they were already suspected of being sore. The USDA’s data is also unreliable because (i) it was obtained by a subjective inspection protocol that does not yield reproducible results, and (ii) the Agency has no data or evidence that allows it to distinguish Tennessee Walking Horses from the other breeds that may continue to use pads to warrant this different treatment. USDA also fails to consider the devastating impact the rule would have on the Industry, given that it would essentially wipe out the entire Performance Division of competition.

The Modified Scar Rule Is Unlawful. USDA’s modifications to the existing Scar Rule (which is being challenged in a separate lawsuit) are arbitrary and capricious and unconstitutional. The USDA ignored calls by the National Academy of Sciences to conduct more research and base any revisions on objective criteria grounded in science. Instead, it created a rule that provides even less guidance to inspectors, as it leaves it up to each inspector to decide what conditions are sufficient to “deem” a horse sore. The rule provides only a non-exhaustive list of conditions that are “indicative of soring,” but at the same time states that these conditions “are not, in and of themselves, always necessarily indicative of soring.” The result is a rule that leads to inherently arbitrary decisions by horse inspectors. It is also unconstitutionally vague, given that horse owners and trainers have no notice of what criteria will be used to deem whether their horses are sore.

USDA’s Elimination Of The DQP Program Is Unlawful. USDA’s elimination of the DQP program is at odds with the HPA, given Congress’s vision of an Industry that will work with USDA to police itself. USDA replaces DQPs with new “Horse Protection Inspectors” (or “HPIs”), who must be trained veterinarians. USDA shifts the higher cost of hiring these HPIs to show management, despite acknowledging that many shows will not be able to afford the increase in cost. And it effectively forces shows to accept USDA’s own inspectors, who it will provide to shows at no cost (but only to the extent they are available). The elimination of the DQP program is also arbitrary and capricious. It is based on USDA’s use of faulty and unreliable data. It shows

inconsistent reasoning by requiring that private inspectors have veterinary credentials where USDA inspectors do not.

The Ban on Substances Is Unlawful. The lawsuit argues that USDA’s decision to ban all substances is beyond its authority under the HPA and is arbitrary and capricious. This sweeping ban irrationally includes substances that are designed to prevent a horse from becoming sore.

USDA Does Not Provide Due Process To Owners And Trainers. The Rule is unconstitutional because it fails to provide due process to horse owners and trainers. Those owners and trainers are not provided with any hearing prior to a horse being disqualified and excluded from a show. Even though a federal court has already decided that this practice is unconstitutional, USDA continues to prevent horse owners and trainers from having any means to challenge a pre-show disqualification before the ability to compete is irrevocably taken away. The new provision in the Rule for a post-show appeal does not solve the problem. Even if an owner or trainer wins an appeal, there is no way to retroactively change the fact that the horse was not permitted to compete at the show.

USDA Fails To Consider The Devastating Economic Effect Of The Rule. USDA’s failure to do a proper economic analysis also makes the rule fundamentally arbitrary and capricious. The economic data relied on by USDA is over a decade old. And, as noted, USDA fails to consider the devastating impact the ban on pads and action devices will have on the Industry, given that it eliminates the entire Performance Division. This division is the main draw for the industry and attracts fans and support for most shows. USDA waves off these concerns, but it fails to rationally explain any basis for ignoring them.

* * *

For all of these reasons, the lawsuit asks the Court to declare that the Rule is unconstitutional, arbitrary and capricious, and beyond the Agency’s authority as explained above. In addition, the lawsuit asks the Court to prevent USDA from enforcing the challenged portions of the Rule.

QUESTIONS AND ANSWERS

Q: How does this lawsuit relate to the Wright lawsuit challenging the current USDA rules?

A: Although the two lawsuits challenge different regulations, they work hand-in-hand. The Wright litigation challenges aspects of the existing rules, including the Scar Rule. The lawsuit challenging the new Rule builds on the Wright lawsuit. If we win in the Wright case, we will have convinced a Court that the existing Scar Rule is unlawful because it produces arbitrary results. Given that the new Rule provides even less objective guidance, a win in the Wright case will help our argument that the new Rule is unlawful. Similarly, if we convince the Court in the Wright case that USDA’s failure to provide appeals for pre-show disqualifications is unlawful, we will be able to point to that in the new lawsuit, given USDA’s failure to make any changes.

In addition, if we succeed in the challenge to the amendments to the Scar Rule in the new Rule, the result would be to leave the old Scar Rule in place. The challenge to the old Scar Rule in the Wright lawsuit is essential to ensure that the USDA cannot simply go back to the status quo.

Finally, the Wright lawsuit raises a challenge to USDA’s policy of disqualifying horses for any signs of post-show inflammation. That policy is not part of the new Rule, so the Wright lawsuit is the only way we can challenge it.

Q: When will the court rule on the lawsuit?

A: That depends on several factors, some of which will be up to the judge and the government. We hope to press for a ruling before the end of the year.



TWH owner Joe Manis sues USDA

Active: Federal lawsuit filed to stop unconstitutional in-house agency “courts”

Joe Manis is a retired North Carolina business owner who has been involved with Tennessee Walking Horses for more than 50 years. When he sold his modular-home company in May 2022 at age 76, he was finally able to focus on the beloved, elegant walking horses he owns and cares for at his family’s Laurinburg, NC, farm.

The Manis family is also a longtime fixture in the North Carolina Walking Horse Association, both in service—Joe has held just about every position in the association, including president—and in competition—his horses have earned many awards and recognition over the years.

The walking horse industry is far from a cash cow. Prize-winning riders and owners typically take home a small amount of money and maybe a ribbon. Indeed, Joe, along with his daughter and granddaughter, don’t do it for money or fame. They do it because they love it.

Joe was understandably stunned when inspectors with the U.S. Department of Agriculture (USDA) claimed he allowed one of his horses to be entered into a show while it was allegedly “sore.” Entering “sored” horses—horses whose legs have been purposely hurt to force a desired gait—in walking shows is outlawed by the federal Horse Protection Act.

The USDA has not alleged that Joe sored or otherwise abused his horse. In fact, the agency doesn’t accuse anyone of soring the horse. Nevertheless, Joe faces a steep fine and a ban of at least one year from the industry.

Even worse, the USDA filed an enforcement action against Joe, not in a court of law, but in the agency’s in-house tribunal. The entire enforcement process is now lodged within the USDA’s own walls, under its own rules, through its own judicial officer and administrative law judges (ALJs). Trying to prove his innocence was never a fair fight.

Like many in-house “trials” conducted by agency employees, the USDA’s process routinely ends with a USDA win. Accused citizens like Joe have huge mountains to climb, with little chance of success.

But the USDA’s in-house proceeding is unconstitutional because it denies Joe the protections guaranteed to private citizens facing government enforcement actions. First and foremost, because the government wants to restrict private conduct and impose financial penalties, the Constitution guarantees Joe the right to a fair trial before an impartial judge and jury. The USDA’s administrative hearing—with court-like procedures concocted by executive agencies, and conducted by an administrative “judge” who is employed by the USDA—denies Joe his constitutional rights.

Furthermore, the USDA lacks the power to impose a binding judgment on Joe. That tremendous power belongs to independent judges who have been nominated by the president and confirmed by the Senate. The USDA’s judicial officer and administrative “judges”—non-independent employees of the USDA—were neither nominated by the president nor confirmed by the Senate. They therefore have no authority to issue binding orders against Joe.

With his right to due process on the line, Joe is fighting back. Represented by PLF free of charge as part of our initiative to End Agency Adjudication, he filed a federal lawsuit challenging the USDA’s authority to prosecute him within its own unconstitutional “courts.” His battle aims not only to prove his innocence, but also to restore the right of all Americans to a fair trial in an actual court of law.



Lawsuit filed challenging enforcement of Horse Protection Act

Lawsuit filed challenging enforcement of Horse Protection Act
Monday, March 11, 2024

Editor’s Note: The following summary of a lawsuit filed earlier today in federal court in Jackson, Tenn., outlines the three main areas being challenged in enforcement of the Horse Protection Act. The lawsuit filed today is independent of the proposed rulemaking currently in process by USDA. To view the full complaint, click here.

SUMMARY OF NEW LAWSUIT CHALLENGING  HORSE PROTECTION ACT  REGULATIONS AND POLICIES

On March 11, 2024, trainers Michael Wright, Casey Wright, and Josh Wright sued the U.S. Department of Agriculture (“USDA” or “Agency”) challenging multiple USDA decisions disqualifying their horses in past shows and challenging the USDA rules that were applied to disqualify their horses.  The Tennessee Walking Horse Industry supports the Wrights in their lawsuit, which raises issues that are important for the entire industry.  The lawsuit asserts that USDA has been unlawfully disqualifying horses and violating trainers’ and owners’ due process rights by failing to provide any mechanism to review disqualification decisions.  The lawsuit focuses on three challenges that may have impacts across the industry.

First, the lawsuit argues that the USDA has been violating constitutional due process rights by disqualifying horses without giving owners or trainers any opportunity to challenge disqualification decisions.  USDA’s rules provide no hearing or other means—either before or after a disqualification—by which a trainer can challenge a disqualification and argue why a horse inspector’s decision was wrong.  That violates the most fundamental principles under the Due Process Clause, which requires a meaningful opportunity to be heard in connection with any government deprivation of a liberty or property interest.  As the lawsuit points out, a federal court determined eight years ago that the USDA violated due process rights by failing to provide any review mechanism, but the USDA has continued to operate under the same unconstitutional regime.  The suit seeks an order declaring the USDA’s practice unlawful and an order requiring USDA to provide due process in connection with any disqualification decisions.

Second, the suit challenges the USDA’s continued enforcement of the Scar Rule, a regulation describing certain conditions which, if found on a horse’s legs, require deeming that horse to be sore.  The Scar Rule exceeds the USDA’s authority under the Horse Protection Act (“HPA”) by using criteria different from those set by Congress in the Act.  In addition, after a review conducted at USDA’s request, the National Academy of Sciences, Engineering, and Medicine told the USDA years ago that the criteria in the Scar Rule have no actual scientific connection to soring and that they cannot be consistently applied—and thus produce arbitrary results.  For those reasons, too, the rule is inconsistent with the statute.

Third, the suit challenges USDA’s policy under which inspectors must disqualify a horse as sore if the horse shows any signs of inflammation in a post-show inspection, without regard to how the inflammation was caused.  That approach also violates the statute by departing from the statutory definition of “sore,” which is triggered only when a person has taken some deliberate action to make a horse sore.  Contrary to the USDA’s approach, any inflammation caused naturally during a competition—such as that caused by horse’s rear legs rubbing on the dirt or gravel in the ring—cannot be treated as a sign of soring under the Act.

The lawsuit asks the court to declare that the USDA’s rules are unlawful and to set them aside so that they can no longer be enforced against the Wrights or any other horse owners and trainers.

QUESTIONS AND ANSWERS

How does this lawsuit relate to the new rule USDA has proposed? This lawsuit challenges USDA’s existing rules and policies, not the new rule USDA has proposed.  We are still waiting for USDA to issue the new rule, at which time there will likely be another lawsuit to challenge it.  However, the issues raised in this lawsuit—in particular the due process concerns—are unlikely to go away once the new rule is adopted.  A favorable ruling in this lawsuit will prevent USDA from enforcing its existing unlawful rules and should be taken into account by the USDA in the new rules it adopts.

Does the lawsuit help only the Wrights?  What about other horse owners and trainers? The lawsuit is brought on behalf of the Wrights, but it seeks relief that would affect all horse owners and trainers.  Because the rules and policies used to disqualify the Wrights’ horses are unlawful each and every time they are used, the complaint asks the court to prevent USDA from using them at all moving forward.

What about other things the USDA does?  Why isn’t the USDA’s foreign substance policy part of this lawsuit? The lawsuit challenges rules and policies that were used against the Wrights in specific instances.  It also challenges rules and policies that we believe give us a high chance of success.  Should we win, we hope to be able to use that ruling to stop USDA from enforcing other unlawful rules (like its foreign substance policy) that go beyond the scope of its authority.

When will the court rule on the lawsuit? That depends on several factors, some of which will be up to the judge and the government.  We hope to press for a ruling sometime this year.