The United States Department of Agriculture recently took aim at the Tennessee Walking Horse industry’s failed efforts at self-regulation with a new rule requiring mandatory minimum penalties for violations of the Horse Protection Act (HPA). The rule will take effect in a few days, on July 9.

Unless it doesn’t.

The industry—parts of it, anyway—fired back on June 25, challenging the new rule with a lawsuit filed in United States District Court for the Northern District of Texas, Fort Worth Division. The plaintiffs are asking for relief in the short term (a temporary restraining order that would prevent the implementation of the rule as scheduled) and a more lasting solution (a permanent injunction barring implementation or enforcement of the rule by the USDA and a decision from the court that the rule is unconstitutional).

The lawsuit doesn’t even try to defend the practice of soring Walking Horses, which is a good thing. The practice is indefensible. In fact, the complaint acknowledges that soring horses amounts to "cheating that is cruel to the horse" and that it "results in a fraud on participants and has a negative impact on the breed and the industry."

It sounds as if the plaintiffs agree with the USDA about soring. So why is everyone in court?

Who’s Involved?

Rather than spend time attacking the substantive parts of the new rule, the plaintiffs instead concentrate on a number of significant procedural issues:

●The rule violates Article I and Article III of the United States Constitution;

●The rule violates the federal Administrative Procedures Act;

●The rule conflicts with the HPA, the statutory scheme it is supposed to support;

●The rule exceeds the authority of the USDA;

●The rule does not guarantee Due Process of law.

This is heady stuff, but are the claims just smoke and mirrors? It might help to take a look at the plaintiffs in the lawsuit.

●SHOW, Inc., the first named plaintiff, is one of a dozen "horse industry organizations" certified by the USDA to hire private individuals (called "designated qualified persons" or DQPs) to inspect horses at shows. SHOW, Inc., is not complaining as a disinterested bystander. The organization was founded in 2009 by the Board of Directors of the Tennessee Walking Horse National Celebration, the largest and most important horse show for the breed in the world. Both the Celebration and SHOW, Inc., are governed by the same seven-member board.

●Contender Farms, L.L.P. is a limited liability partnership in Mississippi that "owns, trains, shows, and sells show horses."

●Mike McGartland lives in Texas and is a general partner in Contender Farms, L.L.P. He also is an attorney who serves as a voluntary prosecutor for SHOW, Inc., when an exhibitor appeals a penalty imposed at a show operated by SHOW, Inc.

The plaintiffs may have genuine concerns about the constitutionality of the USDA action. They also may have a significant financial interest in maintaining the status quo.

What’s At Stake?

A temporary restraining order is appropriate only if the district judge believes that there is a good chance that the plaintiffs will win in the end and that they will suffer "irreparable harm" if the new rule is allowed to take effect while the lawsuit is pending. The complaint makes a reasonable argument in this respect, and it won’t be a surprise if a temporary restraining order is issued so the lawsuit can run its course.

If the USDA wins, a system of mandatory minimum penalties for soring horses finally will take effect. This might take years.

If SHOW, Inc., et al, win, the USDA will have to start over and hope that another "new" rule will pass constitutional muster. In the interim, one of two things might happen:

The USDA could abandon the current self-regulation scheme and take over inspection and enforcement at Walking Horse shows. This is what an audit by the USDA’s Office of Inspector General recommended a couple of years ago. The USDA can’t afford to do this without a significant increase in funds from Congress, which isn’t likely to happen with the current budget crunch, and things could revert to pre-HPA days of no meaningful inspections at all.

Or, the current system of self-regulation could continue as is. This doesn’t work, as the Office of Inspector General audit and just about everyone whose heads aren’t buried in the sand already recognizes.

Whether the USDA rule takes effect months or years later than planned, or we keep the dysfunctional self-regulation or wind up with something worse, it’s a lose-lose situation for the horses.