“Big Lick” horses win in court. Can they get a break from Congress?

Trump killed rule meant to stop soring

WASHINGTON D.C.––Former U.S. President Donald Trump in January 2017 improperly blocked a new USDA Animal & Plant Health Inspection Service rule meant to protect show horses from taking effect,  ruled a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit on July 22,  2022.

The appellate court verdict,  if not appealed further to the U.S. Supreme Court,  could mean that the proposed rule will be reinstated.

The rule was meant to administratively bypass Congressional roadblocks to repeated efforts to pass the Prevent All Soring Tactics Act,  or PAST Act,  which time and again appeared to have enough votes to be enacted into law,  yet remained bottled up in committee by Republican opposition.

Chance to pass the PAST Act is now

Alternatively,  the appellate court verdict could lend momentum to renewed efforts to pass the PAST Act,  now that the longtime leading foe of the bill,  former U.S. Senator Lamar Alexander,  a Tennessee Republican,  is retired.

The window of maximum opportunity for passing the PAST Act would appear to be August and September 2022,  before Congress recesses for the national election campaign and before a possible recapture of either the House of Representatives,  the Senate,  or both by Republican majorities.

While the PAST Act has Republican co-sponsors and has always had bipartisan support,  it has not yet had enough Republican support to get by key committees dominated by Republicans from the Southern and Appalachian states with substantial show horse industries.

Plenty of co-sponsors,  but no floor votes

The PAST Act was reintroduced in both the U.S. House of Representatives and the U.S. Senate for the ninth time on June 24,  2021.  The House version of the PAST Act,  HR 5441,  was reintroduced with 258 co-sponsors.  The Senate version,  S 2295,  had 52 co-sponsors.

The numbers of co-sponsors,  if translated into votes,  would ensure passage of the PAST Act,  but show horse industry lobbying has kept the PAST Act from coming up for a vote,  as written,  since 2012.

Renamed the U.S. Senator Joseph D. Tydings Memorial Prevent All Soring Tactics Act,  the PAST Act was approved by the House of Representatives in July 2019,  but was not voted upon by the Senate.

A bastardized compromise version endorsed by Lamar Alexander,   promoted by Animal Wellness Action lobbyist Marty Irby and what Irby called “key stakeholders in the Tennessee Walking Horse industry,”  was nearly incorporated into a budget bill in the last days of the 116th Congress and the Trump administration,  but was defeated by concerted opposition from horse advocates on December 18,  2020.

“Fifty-year campaign”

Summarized the U.S. Court of Appeals verdict,  “The rule at issue in this case marks the latest effort in a fifty-year campaign [an understatement] to end the ‘soring’ of show horses.  To sore a horse means to cut,  burn,  or otherwise inflict pain” on a horse’s legs to create the altered high-stepping gait called in the show horse industry the “Big Lick.”

In 1970,  the U.S. Court of Appeals recounted,  “Congress enacted the Horse Protection Act to bar the showing or sale of any horse subjected to a ‘cruel or inhumane method or device for the purpose of affecting its gait.’”

Congress then “directed the Secretary of Agriculture to conduct inspections as necessary to enforce these prohibitions.”

Horse Protection Act “did little”

However,  the Court of Appeals continued,  “The 1970 Act did little to abate mistreatment.  In particular,  the ‘limited resources available to the Department of Agriculture’ allowed it to inspect horses at only a handful of the several thousand exhibitions each year,”  according to legislation passed as a Horse Protection Act amendment in 1976.

The 1976 amendment allowed “horse industry organizations,  after obtaining [USDA] certification,  to license designated qualified persons without direct agency training or oversight” to do Horse Protection Act inspections.

“Placing horse industry groups in charge of inspections proved ineffective, and soring continued apace,”  the Court of Appeals observed,  leading to a 2010 USDA Office of the Inspector General report finding that “Because designated qualified persons were beholden to the horse show organizers who employed them,” they had “a direct conflict of interest with enforcing the law” and often overlooked violations.”

Rule-making freeze

Six years later,  the USDA Office of the Inspector General report led to the 2016 publication of “a proposed rule under which [the USDA] would assume direct control of inspector licensure and training consistent with the report’s recommendations,”  the Court of Appeals wrote.

Further to that,  added Sara Amundson,  president of the Humane Society Legislative Fund subsidiary of the Humane Society of the U.S.,  in a blog on the Court of Appeals verdict,  “The rule featured a ban on the use of ‘stacks’ (heavy platform shoes),  chains,  and other cruel and painful devices and practices intended to produce the ‘Big Lick.’”

The proposed rule,  however,  had not yet been printed in The Federal Register when the Trump administration took office and froze all new rule-making.

“Trojan horse amendment”

The highly technical U.S. Court of Appeals ruling addressed the procedural issues involved by the Trump administration action,  but not the implementation of the rule itself, and did not mandate that the rule must take effect.

“As we await the regulatory changes resulting from our successful suit,”  wrote Amundson,  “we continue our efforts to pass legislation to stop soring via the PAST Act.

“Astonishingly,”  Amundson declared,  referring indirectly to Animal Wellness Action,  “there is an irresponsible faction in the movement pushing a Trojan horse alternative to PAST,  recklessly and naively.  They negotiated their replacement bill with walking horse industry interests that celebrate the ‘Big Lick’ show gait.

“Deceptive substitute”

“The latter parties don’t want real reform to end soring; they want to see it flourish,”  Amundson alleged.  “Their bill would weaken the Horse Protection Act,  reinforce the industry’s failed self-policing system,  and require inspection protocols designed to prevent violations from ever being cited.  It would allow continued use of devices integral to soring.

“Fundamentally,”  Amundson charged,  “this deceptive substitute would make it impossible for the agency to implement the regulatory changes needed to bring the protections originally promised by the Horse Protection Act to the victims of soring.”

Amundson did not spell out the details of the “Trojan horse alternative to PAST” she mentioned.

“Call for revisions”

Neither did Marty Irby spell out exactly what he was talking about in a May 31,  2022 media release headed “Late U.S. Senator Joseph D. Tydings’ Family and Animal Wellness Action Call for Revisions Needed to Enact PAST Act.”

However,  the “revisions” to the PAST Act sought by Irby appear to be exactly the same weakening changes he sought in 2020,  detailed by ANIMALS 24-7 in Will anti-show horse soring bill pull up lame through last-hurdle compromise?

Humane Society of the U.S. senior advisor on equine protection Keith Dane responded to the Irby proposals then in Horse Nation on December 1,  2020.

After posting Irby’s proposals word-for-word,  ANIMALS 24-7 posted Dane’s rebuttal.

Wayne Pacelle in the shadows

“The real solutions that can bring about an end to horse soring,”  Dane concluded,  are “the PAST Act as written,  and the USDA rule to amend the Horse Protection Act regulations that was finalized during the Obama administration,  but was then frozen by the incoming Trump administration.”

Animal Wellness Action,  Irby’s employer,  is headed by Wayne Pacelle,  who headed the Humane Society of the U.S. from 2004 to 2018,  when he resigned amid allegations of sexually harassing subordinates.

Irby,  under Pacelle at the Humane Society of the U.S.,  lobbied for the PAST Act as originally written,  but followed Pacelle to Animal Wellness Action,  where both amended their positions in line with Republican policy as outlined by Lamar Alexander.

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