By Courthouse News Service and American Farriers Journal Staff
The 5th Circuit struck down a USDA rule aimed at penalizing horse owners who purposely injure their horses to achieve a gait prized at horse competitions.
Contender Farms, owned by Mark McGartland, sued the U.S. Department of Agriculture to block federal regulations aiming to crack down on cheaters who attempt to win horse shows by harming their horses.
Tennessee show horses have a distinctive high-stepping gait, achieved through extensive training. But it can also be achieved by illegal means by injuring the animal with harmful chemicals to get them to high step, a technique known as "soring."
Soring is prohibited by the Horse Protection Act, which also authorizes the USDA to regulate the management of horse shows, and set licensing requirements for inspectors who examine horses for signs of soring.
In the attempt to achieve a consistent punishment for the practice, the USDA adopted a new regulation in 2012 requiring horse organizations adopt mandatory minimum suspension penalties for soring violators as a condition of participating in the department's inspection program, a necessity for putting on a horse show.
However, the 5th Circuit ruled last week that the regulation overstepped the USDA's authority.
"The suspensions target participants in Tennessee walking horse events like Contender Farms and McGartland, and they are as much objects of the Regulation as the HIOs [horse industry organizations] themselves," Judge E. Grady Jolly says, writing for the three-judge panel. (Emphasis in original.)
The regulation states that if an inspector discovers a violation, individuals responsible for showing the horse, allowing entry of the horse into a show, or selling the horse must all be suspended.
"Although participants in horse shows have always been subject to regulations from both HIOs and the USDA, the USDA has now taken intrusive steps into the private scheme to strengthen the penalties that HIOs must levy against those found to sore horses," according to the 23-page opinion.
While a horsing organization may decline to hire USDA-approved inspectors, it must then accept liability for failing to disqualify a sored horse, even if management was unaware the horse was sore, a choice very few organizations make, according to the judgment.
"The plain language of the HPA suggests that Congress intended a private horse inspection system. This statutory regime does not support the USDA's position that Congress authorized it to promulgate the regulation, which requires private parties to impose government-mandated suspensions as an arm of HPA enforcement," Jolly concluded. (Emphasis in original.)
Friends of Sound Horses (FOSH) President Teresa Bippen and the American Horse Protection Association (AHPA) Executive Director Robin Lohnes lamented the ruling in a joint statement.
"This decision emphasizes why the USDA's decision to rely on horse industry self-regulatory efforts, rather than to implement a strong program of federal inspections and enforcement, has been a failure," according to their statement. "This decision is a travesty for the welfare of the horse and a major blow to the interests of all owners, breeders, trainers and exhibitors who have fought for so many years to ensure that show horse competition is both humane and fair."
Bippen and Lohnes called on USDA to re-examine its regulatory approach in light of the decision.
"Trying to enforce the HPA through the current Designated Qualified Persons (DQP) system is no longer an option for USDA," according to the statement. "Marginal improvements of the DQP system are not enough to ensure that soring will be eradicated — even if those improvements were supported by all elements of the industry and implemented effectively. USDA must fulfill its 2010 commitment to replace the current system with inspectors that are licensed by and answerable to the agency, and must aggressively strengthen its civil enforcement actions against persons who have sored horses.”
