The Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse industries find themselves in a waiting period as a Washington D.C. Circuit judge will soon rule on what to do with the old 2017 HPA rulemaking.  The briefing on the case concluded on March 22, 2022, and now awaits a decision.

The original 2017 rule, worked on during the Obama administration would eliminate the use of any pad, action device, weighted shoe and hoof band, as well as eliminate all Horse Industry Organizations and turn all inspections and enforcement over to the United States Department of Agriculture.  When President Trump was elected, he immediately froze all rules that has not already been published in the Federal Register, which has been precedent for many years for incoming administrations.

After waiting nearly two years, the Humane Society of the United States sued the USDA to force implementation of the 2017 rule.  In the original case, USDA filed for dismissal of the HSUS suit and won in the district court.  The HSUS filed an appeal to the D.C. Circuit Court of Appeals and won the appeal, meaning the rule had met the threshold in the court’s view to be final and thus when USDA formally withdrew the rule they had done so illegally, meaning without a notice and comment period.

The USDA appealed the Court of Appeals decision and the Celebration, on behalf of the show horse industry, filed to intervene.  The USDA lost that appeal and the Celebration was not granted intervention.  However, in the Court of Appeals decision that remanded the case back to the District Court, it suggested that the lower court could consider all remedies in the case, including remand without vacatur, meaning the rule would not have to be forced into implementation.

During the briefing phase in the district court, which just concluded on March 22, the HSUS argued in their briefs that the court must force USDA to implement the rule and granted a grace period, which suggested implementation in July 2022.  The USDA also filed briefs in the case arguing that the court is not forced by precedent to vacate the withdrawal and the court should allow the USDA to focus its intention on the new rule, which would make needed improvements to the old rule for regulation of the horse industry.  Those improvements included recommendations from the National Academies of Science study on the inspection methods.  The USDA also argued that it would not be able to implement the old rule without time to make the needed changes and adjustments in the department to launch a full enforcement scheme and staffing required to carry that out.

The Celebration, again on behalf of the industry, participated in the briefing phase represented by Ellis George Cipollone, arguing in support of the USDA and not vacating the USDA’s withdrawal of the old rule.  The Ellis George Cipollone firm had initially been retained to file the comments on the new USDA rulemaking, but has been needed in the proceedings relating to the possible implementation of the old rule.

There is no timetable for when the judge will rule on the 2017 rule.  The industry is prepared to respond once the judge makes the ruling.  Those possibilities include filing a stay against the implementation of the 2017 rule and then bringing legal action against its implementation, challenging many of the aspects of the rule changes.  If the rule is not forced into implementation, the firm will represent the industry in the comment phase when the new rule is published.  This new rule is still under review at the Office of Management and Budget and could be published at any time, however it is most likely that a decision on the old 2017 rule will come first, and then if needed, the new rule be published or modified.