Quote from WalkingHorse.Chat Staff on July 1, 2024, 10:14 pm

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.

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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.