On October 6, 2022, the Tennessee Walking Horse National Celebration Association asked the federal court of appeals in Washington D.C. to reconsider the decision issued in July that could result in resurrecting the USDA’s 2017 Horse Protection Act regulations. The 2017 regulations purport to eliminate industry inspectors and replace them with government-picked veterinarians.  The 2017 regulations also ban all pads and action devices from horse showing events involving Tennessee Walking Horses. These rules were withdrawn before publication by the Trump administration in early 2017. 

Our petition argues that these rules were lawfully withdrawn.  Our position, consistent with that of every presidential administration from Clinton to Trump, is that federal law demands that agency rules be published in the Federal Register before they can be considered final.  Because the 2017 rules were never published, they were never finalized.  The agency thus still had discretion to withdraw the rules. 

In the alternative, our petition asked the court of appeals to allow the lower court to determine a remedy in the case, which would allow the lower court discretion to decide against reviving the 2017 rules.  Because the USDA has already acknowledged that the 2017 rules are outdated (especially in light of a recent National Academy of Sciences report) and has developed a new proposed rule that it has sent to the OMB and is preparing to release, it would make little sense to revive the 2017 rules now.  We urged the court of appeals to allow the lower court wide discretion to chart a path forward in this case. 

The USDA also filed a petition essentially asking the court of appeals for the same relief we sought as an alternative—that is, allowing the lower court wide discretion on remand to decide the appropriate remedy. Unfortunately the DOJ/USDA did not argue that the Court of Appeals decision was wrong—instead, they requested only that the lower Court have wide discretion on remedy.