On July 22, 2022 the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court ruling and determined that the Horse Protection Rule proposed in 2016 was in fact final even though it was never published in the Federal Register. With that determination, the court ruled the USDA did not properly withdraw the rule in January 2021, because the USDA did not  provide notice and a comment period prior to withdrawing the rule.

The USDA argued in the case that, because the rule had never been published in the Federal Register, it was not a final rule, and as a result the agency could withdraw the rule without notice and comment. The district court agreed with USDA. It dismissed the lawsuit brought by the Humane Society of the United States and the HSUS appealed.

Due to the impact of the 2016 rule on the Tennessee Walking Horse and horse show management, the Tennessee Walking Horse National Celebration Association has filed a motion to intervene in the case. The motion, prepared by Ellis George Cipollone O’Brien Annaguey LLP, counsel for The Celebration, was filed on August 5, 2022.  The Celebration agrees with USDA that the rule was not final, didn’t meet the longstanding requirement of being printed in Federal Register to become final and thus could be withdrawn by USDA. If the motion to intervene is granted, the Celebration will be able to participate as a party in the case and will be able to seek further review of the decision before the D.C. Circuit en banc or to file a petition to ask the Supreme Court to review the decision.

The USDA, in its withdrawal of the 2016 rule, did announce they plan to expeditiously work on a new Horse Protection rule. APHIS Administrator Kevin Shea commented earlier this summer on the withdrawal. “We withdrew that rule because the data that supported it was outdated, and we wanted to use new data plus the National Academies report to come out with a more solid rule. There are people opposed to what we do in horse protection, and they’re not shy about suing us. So when we put a regulation in place, we want it to be as airtight as possible. To have just used the old rule, I think, would’ve made us vulnerable for a legal attack. We want to put out an up-to-date rule based on good data, and it’s our intention and Secretary Vilsack’s intention to do that. We hope to do it, certainly, by the end of this calendar year. And, of course, we’re always hoping Congress might act, too.”

To view the complete motion to intervene click here.