Humane Soc'y of the U.S. v. U.S. Dep't of Agric.
| Decision Date | 27 July 2020 |
| Docket Number | Civil Action No. 19-cv-02458 (ESH) |
| Parties | HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Julia A. Hatcher, Laura J. Glickman, Claudia M. O'Brien, Tyler S. Williams, Latham & Watkins LLP, Washington, DC, for Plaintiffs.
Rachael Lynn Westmoreland, U.S. Department of Justice, Washington, DC, for Defendants.
Before the Court is a Motion to Dismiss brought by defendants the United States Department of Agriculture ("USDA"); the Animal and Plant Health Inspection Service ("APHIS"); the Office of the Federal Register ("OFR"); Sonny Perdue, in his official capacity as Secretary of Agriculture; Kevin Shea, in his official capacity as APHIS Administrator; and Oliver Potts, in his official capacity as Director of the OFR (collectively, "defendants"). Defendants argue that plaintiffs (the Humane Society of the United States ("HSUS"), the Humane Society Legislative Fund ("HSLF"), and four individuals) lack standing to bring this action and that their claims fail as a matter of law. For the reasons set forth herein, the defendants’ motion will be granted.
The Horse Protection Act (the "HPA"), see 15 U.S.C. § 1821 et seq. , passed in 1970 and amended in 1976, "outlaws the practice of horse soring, an inhumane practice of causing pain to a horse's foot or leg to produce a more desirable gait." (See Mem. in Support of Mot. to Dismiss ("Mot. to Dismiss") at 1, ECF No. 18-1.) Congress empowered the Secretary of Agriculture to issue rules and regulations to implement the provisions of the Act. See 15 U.S.C. § 1828. The Secretary exercised this authority soon after the HPA's 1976 amendments and, through APHIS, "promulgated regulations governing inspections to detect the use of devices, equipment and chemical substances that cause soring and those that attempt to mask it, and enforcement in the event of such detection."
Under the regulations, "no chain, boot, roller, collar, action device, nor any other device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore." 9 C.F.R. § 11.2(a). The regulations also ban certain categories of devices in all situations. See id. § 11.2(b) (). Furthermore, they permit Horse Industry Organizations ("HIOs"), defined by the regulations as "organized group[s] of people, having a formal structure, who are engaged in the promotion of horses through the showing, exhibiting, sale, auction, registry, or any activity which contributes to the advancement of the horse," id. § 11.1, to "hire and license private individuals known as Designated Qualified Persons (‘DQPs’) to perform inspections and ... assess and enforce penalties (and administer appeals of those penalties) of any horse soring identified by DQPs." (Compl. ¶ 3.) While the HIOs carry out the licensure of DQPs, the regulations provide certain minimum requirements for the licensing process and require that DQPs be either Doctors of Veterinary Medicine with equine experience or "[f]arriers, horse trainers, and other knowledgeable horsemen" with relevant experience who have been trained and licensed by an HIO. See 9 C.F.R. § 11.7.
This regulatory system for detecting and preventing horse soring has been criticized by some, including plaintiffs, for "allowing the horse industry to regulate itself" through HIOs, as well as "fail[ing] to prohibit certain devices, equipment and foreign substances that have no legitimate purpose other than to cause horse soring." (See Compl. ¶ 3.) A 2010 report by the USDA's Office of the Inspector General ("OIG") found that DQPs, who are hired by the HIOs to enforce the HPA, "are reluctant to issue violations since excluding horses from the show inconveniences their employers, and makes it less likely they will be hired for other shows." (See id. (citing U.S. Dep't of Agriculture, Audit Report 33601-2-KC (2010), https://www.usda.gov/oig/webdocs/33601-02-KC.pdf (hereinafter "OIG Report")).) Moreover, DQPs "are also subject to a conflict of interest because, while they are acting as a DQP at one show, they may be an exhibitor at another show, and the exhibitor of the horse they are examining might later act as the DQP." (Id. )
As a result of this system, the individual plaintiffs allege that they are currently unable "to attend walking horse shows and participate in the walking horse industry without the pain of knowing horses [are] being sored." (See, e.g., id. ¶ 20.) They allege that they have largely withdrawn from the walking horse show community because "it [i]s impossible for sound horses to compete in the industry," and as a result they have lost clients due to their own refusal to sore horses, or they had their own horses sored against their wishes. (See, e.g., id. ¶¶ 19, 20.)
As noted above, in 2010 the USDA's OIG published a report that concluded that "APHIS’ program for inspecting horses for soring is not adequate to ensure that these animals are not being abused." See OIG Report at 1. In particular, the OIG "found that DQPs do not always inspect horses to effectively enforce the law and regulations, and in some cases where they do find violations, they deliberately issue tickets [i.e. , for violations of the Act] to friends or family members of responsible individuals so that the responsible person could avoid receiving a penalty for violating the Horse Protection Act." Id. The report "recommend[ed] that APHIS abolish the DQP program, and instead provide independent, accredited veterinarians to perform inspections at sanctioned shows." Id. at 3.
During the next several years following the release of the OIG Report, plaintiff HSUS petitioned the USDA to amend its HPA regulations. (See Compl. ¶¶ 72-74.) In 2016, APHIS published a proposed rule that "would replace the HIO-administered scheme with USDA-licensed inspectors and would prohibit certain devices, equipment and foreign substances with no legitimate purpose other than to cause horse soring." (See Compl. ¶ 4); see also 81 Fed. Reg. 49,112 (July 26, 2016). The proposed rule would "provide that [APHIS would] train and license Designated Qualified Persons (DQPs) to inspect horses at horse shows, exhibitions, sales, and auctions for compliance with the Horse Protection Act." 81 Fed. Reg. at 49,112. APHIS acknowledged the OIG Report and "agree[d] with OIG's conclusion that the current program of HIOs training and licensing DQPs is not adequately detecting instances of soring." Id. at 49,115. The proposed rule also "prohibit[ed] the use of pads, action devices, and substances." Id. at 49,117.
"On January 11, 2017, David Howard, the Acting Deputy Under Secretary for Marketing and Regulatory Programs signed a document summarizing the outcome of the notice and comment procedures and explaining forthcoming changes to USDA's HPA regulations[,] ... and sent the document to the OFR for publication as a ‘Final Rule.’ " (Mot. to Dismiss at 8.) This document, which the Court refers to as the "2017 Rule," provided that much of it would become effective on January 1, 2018. (See Compl. ¶ 84.) However, two sections, which banned action devices and eliminated the HIO training program while imposing new inspector requirements, would become effective thirty days after publication in the Federal Register. (See id. ) "OFR posted the [2017 Rule] for ‘public inspection’ on Thursday, January 19, 2017, and assigned a publication date of Tuesday, January 24, 2017." (Id. ¶ 93.)
However, the 2017 Rule was never published in the Federal Register. After OFR posted the Rule for public inspection, but before it was published, President Donald Trump was sworn into office. On Inauguration Day, January 20, 2017, "President Trump's Chief of Staff Reince Priebus issued a memorandum directed to agency heads entitled, ‘Regulatory Freeze Pending Review.’ " (Id. ¶ 94.) This memorandum directed all agencies to immediately withdraw any rule that was at the OFR but had not yet been published in the Federal Register. (See id. ().) As a result, on January 23, 2017, the USDA sent a letter to the OFR requesting that the 2017 Rule be withdrawn from the public docket and not be published. (See Mot. to Dismiss at 8 (citing Letter to Oliver Potts, Ex. D, ECF No. 1-4).) The 2017 Rule is now listed on the USDA's list of "inactive" rulemakings. (See id. at 9.) In a 2018 letter, the USDA explained that the rulemaking was listed as inactive while the Department focused on higher-priority actions, namely several rulemakings under the Animal Welfare Act. (See id. at 9-10.)
Plaintiffs filed their complaint on August 13, 2019. They request declaratory and injunctive relief, and bring five causes of action: (1) unlawful repeal of the 2017 Rule without notice and comment, in violation of the Administrative Procedure Act ("APA"); (2) unlawful change of agency position, in violation of the APA; (3) movement of the 2017 Rule to "inactive" status without notice and comment or reasoned explanation, in violation of the APA; (4) withdrawal of a rule for reasons other than error correction and subsequently failing to publish it, in violation of the APA, the Federal Register Act ("FRA"), and OFR regulations; and (5)...
To continue reading
Request your trial
-
Humane Soc'y of the U.S. v. U.S. Dep't of Agric.
...with the government that a rule becomes final only upon Federal Register publication. Humane Society of the United States v. Department of Agriculture , 474 F. Supp. 3d 320, 330–31 (D.D.C. 2020). The district court also rejected the Humane Society's alternative argument that OFR violated it......
-
Humane Soc'y of the United States v. United States Dep't of Agric.
...the 2017 Anti-Soring Enforcement Rule was not a final rule and could be withdrawn without undergoing a formal repeal process. Humane Soc'y I, 474 F.Supp.3d 320. On July 2022, the D.C. Circuit reversed the lower court's ruling, holding that a rule “passes [a] regulatory point of no return” w......