Conflicts of interest and cruelty to animals

Contender Farms, L.L.P. v. U.S. Dep't of Agric., No. 13-11052 (5th Cir. Feb. 19, 2015). 

X-ray image of sored horse’s hoof (USDA)

X-ray image of sored horses hoof (USDA)

Tennessee walking horses are popular horses for riding and showing, and are prized for their distinctive gait. Achieving this gait sometimes requires special training. Some trainers, however, engage in a practice called “soring”—i.e., making the horses “sore”—to achieve a special high-stepping action in their horses.

Soring is every bit as bad as it sounds. Under one method of soring, the trainer applies chemical agents to the horse’s skin. These chemicals burn the horse and lead to intense pain. Another method of soring involves placing metal beads, nails or screws under the horse’s hoof to cause intense pressure. 

In 1970, Congress made soring illegal with the Horse Protection Act, which is enforced by the USDA. To detect soring, the Act requires the inspection of horses at horse shows. Any horses that have been sored must be excluded from competition. The USDA has used a system of enforcement under which private individuals—and not USDA employees—inspect the horses. These private inspectors, though, are licensed and hired by horse show organizers—and horse show organizers, not surprisingly, want as many horses as possible to compete. The USDA found that this system created conflicts of interest among the inspectors and led to lax and inconsistent enforcement of the law. So it promulgated a regulation that required organizations that exhibit horses to adopt mandatory minimum penalties for certain kinds of soring violations. And it also required these organizations to adopt a process under which these penalties could be appealed.

Two organizations that buy, sell, and exhibit Tennessee walking horses have challenged this USDA regulation. The Fifth Circuit, applying Chevron, holds that the regulation conflicts with the Horse Protection Act’s plain language. That language, according to the Fifth Circuit, allows the USDA to regulate the qualifications of horse inspectors. The statute does not allow the agency to regulate the way in which horse exhibitors punish offenderswhich is what the USDA regulation does. So the regulation is invalid.

Even if one believes that the Fifth Circuit correctly interpreted the Horse Protection Act, this result is troubling. The USDA, as the Departments own Office of Inspector General has noted, only has $500,000 per year to administer the horse-inspection program. Private inspectors are therefore a must—and yet who besides the horse exhibitors themselves will pay these inspectors? Under the current regime, inspectors will continue to operate under a serious conflict of interest. If Congress wants the Horse Protection Act to be effective, it would seem to have two choices: either give the USDA more power to regulate, or appropriate more money for USDA-paid inspectors.