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USDA Gets Horse Whipped Over Soring

Please note column printed initially in Farm Futures
by Gary H. Baise

Soring of horses is a terrible practice! Soring is the use of chemicals to cause pain in a horse's feet when they touch the ground, resulting in the horse picking its feet up quickly. Even so, the U.S. Court of Appeals for the 5th Circuit on February 19, 2015, in Contender Farms v. USDA, basically "horse whipped" USDA and its lawyers over this issue.

The case involved USDA regulations on illegal soring of horses at Tennessee Walking Horse shows. The appellate court not only reversed a district court, but vacated USDA's regulation, which means USDA was 100% wrong on its attempt to regulate the Tennessee Walking Horse industry, and its regulation of horse soring.

In 1970, Congress passed the Horse Protection Act. This legislation requested the Secretary of USDA to regulate practices used in training Tennessee Walking Horses. These horses have an exaggerated gate known as "the big lick". Soring a horse is apparently one way of achieving this exaggerated gate. A horse trainer can teach a horse to attain this gait, but some trainers apparently apply chemical agents to the skin or utilize mechanical devices or other means to induce pain in the horse's forelegs to produce the particular gait. Soring is prohibited by the HPA. USDA, however, abused its power in attempting to regulate soring, according to the court. It also said detecting soring is sometimes more art than science.

The plaintiffs claimed USDA's regulation violated due process and the separation of powers clause under the U.S. constitution. The court agreed with the plaintiffs.

The HPA simply requires USDA to "prescribe by regulation requirements for the appointment by the management of any horse show, horse exhibition, or horse sale or auction of persons qualified to detect and diagnose a horse which is sore or to otherwise inspect horses for the purposes of enforcing this chapter."  USDA through APHIS issued regulations creating horse industry organizations which develop and enforce penalties for soring. Penalties can range from suspensions to disqualification to participate in horse shows.

First, the USDA regulation said HIOs must train and certify Designated Qualified Persons to detect soring according to USDA requirements. The HIO must have minimum penalties for soring violations. The HIOs must provide copies of their rule books to USDA.

Second, HIOs must establish particular appeals procedures if there are disputes between DQPs on findings of soring.

Third, the court seemed astounded that USDA took the simple language set forth above and said USDA could initiate its own prosecutions even if a HIO had already penalized a violator for soring. The court was visibly upset that a potential soring violator could be exonerated by an HIO but still be prosecuted by USDA.

USDA relied on the term "requirements" arguing it could adopt any requirement necessary. This visibly angered the court. It said USDA's regulation "…does not authorize USDA to adopt, carte blanche, any condition that it wishes for participation in the…program." It further lectured USDA saying that "Although federal agencies often possess broad authorities to regulate behavior, an agency may not create from whole cloth new liability provisions." In other words, USDA acted unlawfully as a government agency.

The court found USDA and its enforcement regime involving potential soring at Tennessee Walking Horse shows is an improper assertion of authority. USDA and its staff, the court concluded, arbitrarily interjected itself into each layer of enforcement without any statutory authority to deal with soring.

The HPA merely told the USDA Secretary to set up a regulatory program for "managers of any horse show to hire qualified people to detect horse soring." Pretty simple. But USDA bureaucrats could not develop a simple program. USDA wanted more, and said it had the authority to set up a burdensome regulatory program employing countless numbers of individuals, creating havoc at Tennessee Walking Horse shows by disqualifying contestants and ruining careers.

It took a U.S. Court of Appeals to stop USDA's grab for power - and stop it, it did!

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