Humane Soc'y of the United States v. United States Dep't of Agric.
| Decision Date | 12 May 2023 |
| Docket Number | Civil Action 19-cv-2458 (BAH) |
| 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 |
Plaintiffs animal welfare organizations and their members, initiated the instant action in August 2019 to challenge the Department of Agriculture's withdrawal in January 2017, of a rule filed for public inspection earlier that month. See Compl., Ex. D, Letter from USDA Regul. Analysis & Dev Chief Steve O'Neill to Off. of the Fed. Register Dir Oliver Potts (undated) (“Repeal Action”), ECF No 1-4. The withdrawn rule would have overhauled the Department's enforcement of the Horse Protection Act, a law passed over fifty years ago to eradicate a practice called “soring” in which competitive show horses' legs are cut, burned, or otherwise hurt in order to alter their natural gait. See Compl., Ex. B (“2017 Anti-Soring Enforcement Rule”), ECF No. 1-2; Compl. ¶¶ 1-10, ECF No. 1.[1]Over the course of more than three years of litigation, the district court first granted defendants' motion to dismiss, Humane Soc'y of the United States v. USDA (“Humane Soc'y I”), 474 F.Supp.3d 320 (D.D.C. 2020) (Huvelle, J.), allowing the withdrawal and effective repeal of the 2017 Anti-Soring Enforcement Rule.[2] Then, the D.C. Circuit reversed, holding that, although never published in the Federal Register, the 2017 AntiSoring Enforcement Rule passed the “regulatory point of no return” upon its filing for public inspection and the agency's withdrawal without notice and comment was consequently unlawful. Humane Soc y of the United States v. USDA (“Humane Soc y II”), 41 F.4th 564, 568-75 (D.C. Cir. 2022). With the agency's Repeal Action deemed unlawful, the only question now before this Court is whether the 2017 Anti-Soring Enforcement Rule, which should be in its sixth year of implementation, should be permitted, zombie-like, to spring to life by vacating the agency Repeal Action, or whether to maintain the status quo by remanding without vacatur, at least for some period of time.
Pending before this Court are five motions concerning this remedial phase of the litigation, grouped around two core issues. First, shortly after the issuance of the D.C. Circuit mandate, the Tennessee Walking Horse National Celebration Association (the “Association”) filed a motion to intervene, see Tennessee Walking Horse Nat'l Celebration Ass'n's Mot. Intervene (“Horse Ass'n's Mot. Intervene”), ECF No. 33; in the alternative, the Association moved to participate as amicus curiae, see Tennessee Walking Horse Nat'l Celebration Ass'n's Conditional, Unopposed Mot. File as Amicus Curiae, ECF No. 48. Second, the Association, plaintiffs, and defendants have each filed cross-motions as to the proper remedy in this case, with plaintiffs arguing that the unlawful Repeal Action should be vacated, and defendants and the Association contending that remand without vacatur is the appropriate disposition.
For the reasons set forth below, the Association's motion to intervene is granted, and the Court determines that the proper remedy is remand, without vacatur, for USDA to take appropriate remedial action within 120 days. If USDA fails to do so, the unlawful Repeal Action will be vacated, unless the agency demonstrates within ten days of the issuance of this decision compelling need for additional time.
The statutory and regulatory scheme underlying the parties' dispute is described below, followed by the relevant procedural history. A fuller account of the history is set out in the prior district court opinion, Humane Soc y 1, 474 F.Supp.3d at 324-26, and need not be repeated here in resolving the instant dispute regarding the appropriate remedy.
Gaited horse breeds exemplified by the Tennessee Walking Horse have long been admired for their “elegant, high-stepping strut that comes from both careful breeding and patient training.” Tennessee Walking Horse Nat'l Celebration Ass'n's Combined Mem. Opp. Pls.' Mot. Entry of J. & Supp. Remand Without Vacatur (“Horse Ass'n's Opp'n”) at 8, ECF No. 46-1.[3]Each year, generally between March and November, the horses compete in a series of shows and exhibitions that showcase the horses' distinctive walk. Id. The largest of these events for Tennessee Walking Horses is the National Celebration, an eleven-day event drawing more than 100,000 spectators to Shelbyville, Tennessee each year, where the “World Grand Champion” is crowned. Id. In preparation for these events, horses entered in the more dramatic “performance category” have typically trained with-and perform wearing-weights of six ounces or less on their legs, called action devices, and pads between their hooves and shoes. Id. at 9.
The distinctive gait of the Tennessee Walking Horse and certain other show horses that is prized in the show rings can be developed through time-and-labor-intensive training, but-as abusive trainers have discovered-the sought-after gait may more expediently be created by inflicting severe pain on the horse's feet or legs, a practice euphemistically called “soring.” See id. at 8-9. This method typically involves the application of a blistering agent, such as mustard oil, to the horse's legs, which are then wrapped with so-called “action devices,” such as chains, beads, or metal rollers, to aggravate further the pain during the horse's performance and causing the horse so subjected to these techniques to avoid placing weight on the injured legs. See Compl. ¶¶ 49, 71; H.R. Rep. No. 91-1597, at 2 (1970). The effect is to exaggerate the high-stepping gait cultivated among these show horses. The pads that horses are often trained with can also be used for soring; for example, abusive trainers use the pads to hide items, such as bolts and other hard objects, that apply painful pressure to the soles of the horses' hooves, resulting in the same effect of pain-optimized performance, see Compl. ¶ 71; see also Horse Protection; Licensing of Designated Qualified Persons and Other Amendments, 81 Fed.Reg. 49,112, 49,120 (proposed July 26, 2016) (to be codified at 9 C.F.R. pt. 11). Soring “can make a mediocre horse perform like a champion,” but this abuse comes at the cost of the horses' well-being, as well as fair competition in the gaited horse show industry. H.R. Rep. 91-1597.
Over fifty years ago, in 1970, Congress launched the federal government's campaign to end the practice of horse soring with the passage of the Horse Protection Act. The Act prohibited the showing or exhibition of sored horses, and defined soring as causing pain or inflammation to horses in order to affect their natural gaits by methods including the use of blistering or chemical agents, infliction of burns or lacerations, and “any other cruel or inhumane method or device.” Horse Protection Act of 1970, Pub. L. No. 91-540, at § 2(a)(1)-(4), 84 Stat. 1404 (1970). The Act also authorized USDA to conduct inspections to prevent soring, but due to its minimal resources and lax enforcement methods, USDA's inability to make a dent on the industry's pervasive soring practices quickly become apparent. In hearings before Congress in 1975, USDA estimated that it would only be able to inspect 20 out of the 3,600 horse shows scheduled for the 1976 fiscal year-reaching only the “tip of the iceberg” of soring violations. H.R. Rep. No. 94-1174, at 5-6 (1976).
In response, Congress amended the Horse Protection Act in 1976, empowering USDA to create the private enforcement scheme that presently remains in practice. See Horse Protection Act Amendments of 1976, Pub. L. No. 94-360, 90 Stat. 915 (1976). The regulations promulgated pursuant to the 1976 amendments set out a system by which the horse industry would regulate itself, appointing so-called horse industry organizations that sponsor horse shows to train and license “Designated Qualified Persons” (“DQPs”), who may be veterinarians or any “knowledgeable horsemen.” Definition of Terms and Certification and Licensing of Designated Qualified Persons, 44 Fed.Reg. 1558 (1979); accord Certification and Licensing of Designated Qualified Persons (DQP's), 9 C.F.R. § 11.7(a)(1)-(2), (b) (2022). DQPs are tasked with inspecting horses for evidence of soring at horse shows and sales, disqualifying sored horses and issuing violations to the owners. See 9 C.F.R. § 11.7; Responsibilities and Liabilities of Management, 9 C.F.R. § 11.20 (2022). USDA's involvement in this otherwise-self-policing system is to certify training programs and to send its own veterinarians on unannounced trips to evaluate DQPs' performance. 9 C.F.R. § 11.7. Otherwise, the horse industry organizations are in charge and responsible for licensing, training, and hiring the DQPs, as well as overseeing the internal penalty schemes and appeal procedures for violations. Id.; see also U.S. Department of Agriculture Office of the Inspector General, Audit Report 33601-2-KC, Animal and Plant Health Inspection Service Administration of the Horse Protection Program and the Slaughter Horse Transport Program at 1-2 (Sept. 2010).
The self-regulating regime was apparently overly optimistic that the horse show industry could or would effectively protect horses from troubling and unfair soring practices. In a 2010 report, USDA's Office of the Inspector General (“USDA-OIG”) concluded that the selfregulating regime had failed to achieve its intended purpose and recommended that the Animal and Plant Health Inspection Service (APHIS) of USDA abolish the program. Id. at 3. The system was determined to be hamstrung by conflicts of interest: the DQPs are often horse...
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