The Humane Society of the United States and its legislative fund have filed a lawsuit in federal court to compel the United States Department of Agriculture to enact a rule that aims to end soring by amending the Horse Protection Act.

The lawsuit, which was filed Wednesday, Aug. 14, 2019, argues that the USDA violated the legal requirement of rulemaking, as well as its HPA mandate.

In the waning weeks of the Obama administration, the USDA finalized a rule Jan. 13, 2017, that its advocates touted as a means of ending soring. However, the administration failed to publish the final rule in the Federal Register before President Donald Trump took office 7 days later. In keeping with previous presidential administrations entering office, the Trump administration withdrew all unpublished rules, sending them back to the relevant agency for review.

“With respect to regulations that have been sent to the OFR [Office of the Federal Register] but not published in the Federal Register, immediately withdraw them from the OFR for review and approval,” a memo attributed to White House Chief of Staff Reince Preibus states.

The HSUS lawsuit accuses the USDA of withdrawing the rule without following mandated procedures “to repeal a duly issued, prescribed and promulgated final rule.”

“With today’s legal action we are making clear that we intend to hold the federal government accountable for complying with its statutory obligations under the Horse Protection Act to end the cruelty of soring,” says Kitty Block, president and CEO of HSUS. “Our action also puts horse sorers on notice that we will not stop in our efforts to halt the cruelty they inflict on horses.”

The final rule largely mirrors the bipartisan Prevent All Soring Tactics (PAST) Act, which the U.S. House of Representatives approved in late July in a 333-96 vote. The legislation has moved on to the Senate where it has been referred to the Committee on Commerce, Science and Transportation.

The rule prohibited the use of all action devices — except certain boots — and all associated lubricants; as well as pads and wedges, unless prescribed and the horse is receiving therapeutic, veterinary treatment, on all Tennessee Walking Horses and racking horses. It also mandated that a farrier is physically present to assist horse protection inspectors (HPI) at horse shows, exhibitions, sales and auctions “that allow Tennessee Walking Horses or Racking Horses to participate in therapeutic pads and wedges if more than 150 horses are entered.” A farrier would be on call if fewer than 150 horses are entered.

The rule also prohibited a number of farriery devices, equipment, appliances and practices on “any horse at any horse shoe, exhibition, sale, or auction.” Specifically, the rule prohibited:

• More than one action devices on any one limb of a horse.
• Pads or other devices on horses up to 2 years old that elevate or change the angle of the hooves in excess of 1 inch at the heel.
• Artificial extension of the toe length, whether accomplished with pads, acrylics or any other material or combination thereof, that exceeds 50% of the natural hoof length.
• Toe length that does not exceed the height of the heel by 1 inch or more.
• Pads that are not made of leather, plastic, or similar pliant material.
• Any object of material inserted between the pad and the hoof other than acceptable hoof packing, which includes pine tar, oakum, live rubber, sponge rubber, silicone commercial hoof packing or other substances used to maintain adequate frog pressure or sole consistency. Acrylic and other hardening substances are prohibited as hoof packing.
• Single or double rocker-bars on the ground surface of horseshoes that extend more than 1 1/2 inches back from the point of the toe.
• Metal hoof bands placed less than 1/2 inch below the coronet band.
• Any action device or any other device that strikes the coronet band.
• Shoeing a horse, trimming a horse’s hoof, or paring the frog or sole in a manner that will cause suffering, pain, distress, inflammation or lameness during movement.
• Lead or other weights attached to the outside of the hoof wall, the outside surface of the horseshoe, or any portion of the pad, except the bottom surface within the horseshoe.

Leading up to the rule being finalized, the USDA’s Animal and Plant Health Inspection Service (APHIS) conducted five public meet­ings in which thousands of both verbal and written comments were submitted by animal rights activists, lawmakers, equine organizations, horse owners, trainers, veterinarians and farriers. Although many supported the intent to end soring, there was a great deal of concern expressed from a number of corners.

Much of the dissention focused on two areas — the broad language contained within the plan, as well as the proposed ban on “the use of all action devices, pads, and foreign substances at horse shows, exhibitions, sales and auctions.” APHIS contended the rule “would align the HPA regulations with existing equestrian standards set forth by the U.S. Equestrian Federation (USEF).” However, the USEF took exception with APHIS’ characterization during the Sept. 6, 2017, public meeting.

“We believe that unless the proposed language is amended, the enforceability of the regulation is vulnerable to a court finding that the proposed rule is arbitrary and capricious,” said Stephen Schumacher, a veterinarian and the chief administrator of USEF’s Drugs and Medications Program.

Several equine industry organizations — including USEF, the American Horse Council (AHC), the American Farrier’s Association (AFA) and the American and International Associations of Professional Farriers (AAPF/IAPF) — expressed concern with the statement, “Tennessee Walking Horses, Racking Horses or related breeds that perform with an accentuated gait that raises concerns about soring at any horse show, horse exhibition, horse sale, or horse auction.”

“There are several horse breeds besides Tennessee Walking Horses, Racking Horses, and Spotted Saddle Horses that could be said to have an ‘accentuated gait,’ such as Saddlebreds, Morgans, Hackneys and others,” ac­cording to a letter attributed to Julie Broadway, AHC president. “These breeds have never been cited for violations of the HPA and do not perform the ‘big lick’ that is the primary motivation for soring. … [B]ecause the term ‘raises concerns about soring,’ is subjective and undefined, it is unclear whether these new provisions of the rule might be extended to such breeds now or in the future.”

The farrier industry logged their concerns, particularly as it pertained to a proposed ban on action devices and pads.

“A horseshoe could be considered an action device,” said Jon Johnson, a Kansas farrier who served as AFA president during that time. “A shod horse moves differently from a horse that is barefoot, and various shoes have a greater influence on the movement than others. And a pad can be applied with good reason to protect an unusually sensitive, sore surface, with the end result being more comfortable for the horse, rather than one previously in distress.”