It's an all-too-common issue these days: you take good care of your horses, providing food, water, shelter, attention, veterinary care, a farrier, the works, but your neighbor does not. What do you do? An old adage (are there any new adages?) says that if you're not part of the solution, you're part of the problem. That sounds like an unequivocal call to action, and some individuals and organizations concerned with animal welfare feel that doing anything is better than doing nothing.

The danger, however, is creating new problems while trying to solve existing ones. Rescue groups that take in more horses than they can manage sometimes have to be rescued themselves, and good-hearted and well-intentioned individuals create more problems than solutions when they overextend themselves by taking in too many horses that need help.

Is your neighbor neglecting his or her horses out of ignorance, or intentionally abusing them? If it's the former, and if your neighbor is amenable, some friendly advice about basic horse care might solve the problem. "Knowledge is power," according to Sir Francis Bacon. Keep in mind, though, that no one has an obligation to take your advice, no matter how good it might be, or even to allow you on private property to give that advice. There are myriad civil and criminal legal issues associated with horse rescue, including trespass, conversion or theft of personal property, and even libel or slander. Simply being a good Samaritan likely will fail as a defense to a lawsuit or criminal charge.

If your neighbor is intentionally abusing animals, the proper authorities should be notified immediately. No matter how strong or weak the animal welfare laws are in your state, there are few situations in which taking the law into your own hands is a good idea. 

But what about a neighbor who wants to take care of the horses but has fallen on hard times, another victim of a bad economy? Should you take in some of the horses and care for them? While this might be the right thing to do, you should consider the legal ramifications.

First, there should be a written contract that includes, among other things: the business relationship between you and the neighbor (are you partners, for example); which horses you'll be responsible for; how long the animals will be in your care; the standard of care you will provide; whether the owner will provide any feed, veterinary and farrier care, or labor to supplement your care of the animals; who has authority to call a veterinarian and who will be responsible for unexpected and extraordinary expenses such as colic surgery; whether you can expect to be reimbursed by the owner for your expenses at some later date (if so, the date should be specific); and whether you will share in any profits realized if horses in your care are sold.

If there are broodmares involved, the contract should give you decision-making authority over whether animals in your care will be bred. This can be a particularly touchy subject, especially if the owner wants to keep breeding in hopes that the horses will someday be sold for enough money to show a profit. Keep in mind that continuing to produce any product that cannot be sold profitably seldom makes good economic sense. Overproduction and diminished demand are serious problems in the horse industry today, and you do not want to become an enabler who adds to the overpopuation problem.

Finally, remember the law of bailments. This has nothing to do with getting your neighbor out of jail by posting bail, and everything to do with your responsibility for taking care of horses belonging to someone else. If one person turns over personal property (including horses) to another person for safekeeping—-the exact scenario envisioned here—-the person who takes possession of the property has a legal obligation to return the property to the owner undamaged. If one of your neighbor's horses is injured while in your care, you must prove that you were not negligent to avoid legal liability. That can be a difficult burden for the defendant in a lawsuit. Anyone who assumes responsibility for horses owned by someone else should have care, custody and control insurance for their own protection.

If all this seems like too much complication for performing a good deed, remember another old adage: "No good deed goes unpunished."   

A farm owner in Northern Kentucky hired a tree removal service to clean up some fallen tree limbs on his property.  There's nothing peculiar about this; it happens all the time.  The result, though, was unexpected and tragic and led to lawsuits filed against both the farm owner and the tree removal company by the owner of a neighboring farm.

As part of the clean-up process, employees of the tree removal company operated a wood chipper, a mechanical device that grinds limbs into sawdust that can be carted away.  Wood chippers are very efficient—and very noisy.  According to the lawsuits, the racket from the wood chipper spooked some horses in a field adjacent to the clean-up work.  One of the horses ran into something that severed an artery in his neck, causing the animal's death; another horse suffered injuries serious enough that he could not race.  The horse owner claimed that either the farm owner who hired the company, or the tree removal company and its employees, or both, were negligent and caused the injuries to his horses.

Who wins?

This dispute never reached a jury.  The trial judge short-circuited the process by granting summary judgment in favor of the farm owner and the tree removal company.  Summary judgment is a legal result in which a judge determines that there are no facts in dispute requiring a jury trial, and that one party to a lawsuit wins as a "matter of law."  In this case, the trial judge relied on a 100-year-old case to rule that neither the farm owner nor the employees operating the wood chipper had a legal duty to warn the horse owner on the neighboring farm that noise from the machine might scare the horses.

A finding of negligence requires several things:  that the defendant owed a legal duty of care to the plaintiff, that the defendant breached the legal duty, that there was harm, and that the breach of duty actually caused the harm.  If there is no legal duty in the first place, which the trial judge determined, there can be no breach and no finding of fault.  With no fault, there can be no legal responsibility.  Whether the farm owner or the tree removal company employees should have warned the neighbor of the potential risk as a matter of courtesy was not the issue.  While doing so might have been prudent, the trial judge said there was no legal duty to warn.

The horse owner appealed the decision, and the Kentucky Court of Appeals agreed with the trial judge.  The Court of Appeals said that the farm owner and the tree removal company employees were "not acting in any improper manner," that the wood chipper was a "piece of equipment routinely used for tree removal," and that the "landowner and the contractor hired to remove branches did not have a legal duty to the adjoining landowner to warn him of loud noises when performing work upon their property."  The Court also determined that there was no overriding "general duty of care" that covered the situation.

The cases were decided earlier this year:  Wright v. R & M Fence and Construction (No. 2007-CA-001000-MR) and Wright v. Kelly (No. 2007-CA-001014-MR).  The decision is unpublished, which means that it cannot be used as precedent in other proceedings.  The decision does show, however, that in some situations there is no legal duty to be a good neighbor.             

When something sounds too good to be true, it usually is, especially if the promised benefits include a substantial tax break. On October 26, in federal district court in Utah, David Plummer, Spencer Plummer, and Terry Green entered guilty pleas on a charge of conspiracy to defraud the United States. The charge arose from a fraudulent tax shelter scheme called the "Mare Lease Program" that was marketed through ClassicStar LLC.

Tax deductions based on supposed losses generated by the leasing program were used by ClassicStar investors to reduce or eliminate taxes on other income. Some $500 million in fraudulent deductions allegedly bilked the government out of $200 million in taxes. The guilty pleas wrap up one part of the ClassicStar confusion, but others remain, including bankruptcy proceedings and more than two dozen civil lawsuits filed in six states.

More problematic for everyone not directly involved is that the ClassicStar affair reinforces two persistent stereotypes that make surviving in the horse business even more difficult. Common perceptions are, first, that everyone who owns horses is wealthy and on the prowl for a tax shelter, legitimate or otherwise, and, second, that all tax deductions generated by horse activities are shady. The former makes the horse industry fair game for state and federal legislators who are looking for people with deep pockets to plug budget holes. The latter makes it far more difficult for individuals in the horse business to claim legitimate tax deductions in the face of an IRS audit.

Neither stereotype is accurate.

According to the American Horse Council’s economic survey, 34% of horse owners have annual household incomes less than $50,000, and almost half of all horse owners have annual incomes in the $25,000-$75,000 range. These owners are the backbone of the industry, and certainly are not the same people who ran up $500 million in fraudulent tax deductions by investing serious money with ClassicStar.

Nor are all horse activities merely fronts for generating bogus tax deductions. If a horse operation satisfies the Internal Revenue Service tests for a business, the owner should be entitled to the same panoply of tax deductions enjoyed by non-equine businesses. Horse owners and breeders are not inherently dishonest, and any stigma resulting from a few bad apples should not be part of the taxation equation.

The federal government certainly has a legitimate interest in investigating and prosecuting tax evasion. By the same token, however, the government and the IRS must avoid painting the entire horse industry with a brush tainted by the ClassicStar fiasco. Surviving in the horse business is tough enough as it is.

UPDATE: The Tennessee Walking Horse controversy continues. A few weeks ago the Kentucky Horse Racing Commission decided to require some assurances that Tennessee Walking Horses are not being abused in the show ring as a prerequisite to state breeders fund payouts. On the heels of that decision, the Alltech FEI World Equestrian Games board of directors did an about-face and barred the Tennessee Walking Horse Breeders and Exhibitors Association from participation in the Equine Village. Instead, the breed will be represented at the Games by the National Walking Horse Association, which promotes showing without any gait enhancement devices or training methods. The Tennessee Walking Horse Breeders and Exhibitors initially were approved for Equine Village participation and demonstrations a year ago. At that time, according to press reports, the organization acceded to a WEG request and promised not to bring any horses which had been "sored" or had gait-enhancing devices such as padded shoes or chains around their front pasterns.

A recent letter to the Lexington Herald-Leader offered a novel way to reduce the number of breakdowns at the race track. The writer, a self-styled "horse communicator," suggested that he can detect a horse’s injuries up to two weeks before the nature and site of the injury become apparent to a veterinarian. Utilization of this skill, the writer said, would allow sore or injured horses to be held out of races, presumably reducing the number of horses that break down during competition.

I grew up showing American Saddlebreds, and our trainer had an uncanny ability to know when one of our horses was ill. Albert would walk down the barn aisle, looking into each stall, and every now and then announce that "King of Diamonds has a fever," or "Somethin’ Special is a little off today." Maybe he was communicating with the horses, but my guess is that he was simply relying on a lifetime of experience as a trainer to pick up subtle signals that were lost on me.

Whether people can actually communicate with horses is not the point, though. The question is whether offering that service to horse owners, either for free or for pay, violates any laws. The answer, perhaps surprisingly, may be "yes."

Each state has on its books a veterinary practice act that defines the practice of veterinary medicine by listing procedures and techniques that require a veterinary license. Each veterinary practice act is unique, but there are many similarities. I reviewed the laws of all 50 states for "State Regulation of Complementary and Alternative Veterinary Therapies: Defining the Practice of Veterinary Medicine in the 21st Century," an article that appeared in the inaugural issue of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law. One of the common factors in all of the practice acts was defining the practice of veterinary medicine to include the diagnosis, treatment, relief, or prevention of any animal disease, defect, or injury. This definition includes traditional veterinary therapies, as well as massage, acupuncture, chiropractic, ultrasound, and more esoteric complementary and alternative therapies.

Does learning that a horse has a sore ankle by having the animal tell you about the condition really constitute the diagnosis or prevention of an injury, and thus the practice of veterinary medicine requiring a license? The answer depends on how broadly you interpret the veterinary practice act in force where the supposed animal communication takes place. My physician sometimes comes up with a diagnosis based solely on what I tell him about my symptoms, and I have no problem calling that process the practice of medicine. (There may be separate legal issues involved if a person claims to be able to communicate with a horse but cannot actually do so. Fraud may be involved, especially if money changes hands in payment for the service, but that is another matter entirely.)

Veterinary practice acts also include exceptions to the licensing requirement. In all states, the owner of an animal can treat the animal’s illnesses and injuries without running afoul of the law. Many states also exempt regular employees of the animal’s owner, as well as an individual who aids an animal owned by another person if there is no remuneration. Some states allow a non-veterinarian practitioner such as a massage therapist to work under the direct or indirect supervision of a licensed veterinarian, others do not.

The point here is not to denigrate animal communicators or practitioners of complementary or alternative therapies for horses and other animals. Some techniques once considered on the fringes of accepted veterinary medicine now are approaching mainstream status as more animal owners seek new therapies and employ non-veterinarians. It is important, however, that animal owners make informed choices about veterinary treatment.

When considering a complementary or alternative therapy for a horse or other animal, an owner should ask questions about the practitioner’s qualifications and certifications, if any. Was the certification from a recognized four-year degree program, for example, or a fly-by-night, weekend course at a local motel? Not all programs are created equal. The owner should obtain and review references from other clients, be certain that the practitioner is covered by liability insurance, and verify that the practitioner can legally provide the offered services under the state veterinary practice act. Better safe than sorry always is good practice.

States should not be in the business of subsidizing owners, breeders, and exhibitors who abuse or neglect their horses. That should go without saying, but it still happens. Steps are being taken in New York and Kentucky to link incentive program payments to animal welfare, and other states should follow those examples.

Attracting businesses to a state by sweetening the pot with tax breaks or other financial considerations is common.  Fast Track Productions, Inc., a subsidiary of Disney Studios, is a good example. Fast Track reportedly is eligible for some $800,000 in Kentucky tax credits as a result of coming to the state to film portions of an upcoming movie based on Triple Crown winner Secretariat. The idea is that the cost of the government incentives will be more than offset by the extra revenue generated by increased business activity in Kentucky.

Incentives for horse businesses work on the same principle. They are designed to entice breeders to set up shop in a particular state by providing financial incentives to breeders and owners when state-bred horses win races or other competitions. State-bred programs can be very lucrative and the consensus is that they are successful. The New York Thoroughbred Breeding and Development Fund, for example, distributes more than $60 million a year in the form of breeder, owner, and stallion awards and purses for races restricted to New York-breds. That’s serious money, and a good reason to raise horses in New York.

Eligibility for incentive money generally is based solely on whether a horse meets the technical requirements for registration as a state-bred. Whether a breeder or owner is a responsible horse owner who takes good care of his or her horses seldom is a factor. Earlier this year, prominent New York breeder Ernest Paragallo was charged with multiple counts of animal cruelty and neglected horses were seized from his Center Brook Farm. At the time, despite the pending criminal charges, Paragallo still was eligible to receive fund money based on the performance of his New York-breds. It was a public relations nightmare, and the Breeding and Development Fund acted quickly to suspend incentive payments until the criminal charges are resolved. Racing licenses for Paragallo and his children also were rescinded.

In August, the Breeding and Development Fund took a more proactive stance, approving a policy for automatic suspension of incentive fund payments for anyone charged with animal cruelty or neglect. Under the leadership of Chair John D. Sabini, an inspection program is in the works to ensure that state incentive money goes only to breeders who are providing adequate care for their horses.

The Kentucky Horse Racing Commission oversees a similar incentive program for Thoroughbreds, Standardbreds, and other competition horses bred in the state. The program is funded through a six-per-cent sales tax on stallion breeding fees. The Kentucky Walking Horse Breeders Incentive Fund (KWH-BIF) administers the portion of the fund distributed to state breeders of walking horses. Payout for 2009 was estimated in the neighborhood of $375,000, but in February 2009, growing concern over inadequate enforcement and failure to report violations of the federal Horse Protection Act led the Commission to defer those payments. The Horse Protection Act is supposed to eliminate the practice of "soring" walking horses to achieve a high-stepping gait favored in the show ring. So far, it has not worked very well.

Following a full investigation, the Commission in September approved the KWH-BIF as the affiliate organization to distribute state incentive funds to walking horse breeders. Approval was contingent on several mandates, however, including requirements that all shows at which incentive fund points can be earned utilize Horse Inspection Officers from one of three approved groups and that all Horse Protection Act violations must be reported.

These are small, but important steps, and New York and Kentucky should be commended for taking them.