The Tennessee Walking Horse National Celebration filed a motion to intervene in the United States District Court for the District of Columbia in the Humane Society of the United States v. United States Department of Agriculture. This court originally ruled in favor of the USDA when the HSUS sued the department stating the 2017 Horse Protection rule was final, even though it had not been published in the Federal Register, and thus the USDA should not have been allowed to withdraw the rule.
Decades long case law set the precedent that no rule is final until it is printed in the Federal Register. The USDA successfully argued this point in the DC circuit, only to have that ruling challenged in the Court of Appeals for the DC Circuit. In a split decision the Court of Appeals ruled to overturn the lower court decision and in fact agreed that the rule had met the criteria to be final and thus the USDA wrongfully withdrew the rule without going through notice and comment.
Upon the issuing of the ruling, the Department of Justice (on behalf of USDA) appealed the decision of the appeals court and the Celebration sought intervention and filed a petition for rehearing. Earlier in December, the DC Court of Appeals denied the USDA’s appeal as well as denied the Celebration’s intervention, citing that it was not timely, and its motion for rehearing. This decision was also a split decision of the three justices on the DC Circuit Court of Appeals. The court of appeals remanded the case back to the DC circuit on December 13th and specifically stated, “the district court may consider all remedial issues, including the question of whether remand to the agency without vacatur is appropriate under the criteria established by Circuit precedent.”
The Celebration is seeking intervention to participate in the remedial phase of the case due to the fact that if the 2017 rule was enacted after a 6 year waiting period, it would have devastating effects on its horse show and the Tennessee Walking Horse industry. Patrick Philbin, the attorney filing the motion on behalf of the Celebration, argued the Celebration “satisfies all requirements to intervene as of right in the remedial phase of this case.” Philbin also makes the case that the Celebration has Article III standing because it would be directly subject to the regulation and also that this is timely, given this is the first option for the court to consider the remedies in this case
It is not clear where the district court will come down on the remedy issue. The Court of Appeals has recommended wide latitude for the court and also specifically made mention of the new rule the USDA drafted and is currently under review at the Office of Management and Budget. Industry groups believe the new proposed rule will be made public and enter the comment phase early in 2023. The USDA has stated publicly that the 2017 is not sufficient and does not consider relevant data over the last six years, including the independent study concluded by the National Academies of Science that pointed out major flaws in the current regulations and inspection protocols.
Due to the potential impact the 2017 rule would have on the industry and Celebration specifically, the Celebration is seeking intervention. “The Celebration will protect its interests, as well as those of the industry at large, from any regulation that wrongfully targets the Tennessee Walking Horse. We feel the 2017 rule does just that and is highly flawed and doesn’t consider relevant data from the last six years. Whereas we do feel the District Court will follow the advice of the Court of Appeals and not vacate the USDA’s withdrawal of the 2017 rule, we can’t rely on that and must intervene to make sure our interests as well as those of the industry at large are adequately represented,” said Celebration CEO Warren Wells.