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March 18, 1988

American Horse Protection Association, Inc., Plaintiff,
Richard E. Lyng, Secretary, U.S. Department of Agriculture, Defendant

The opinion of the court was delivered by: GASCH

 HONORABLE OLIVER GASCH, Senior District Judge


 This matter is before the Court on defendant's motion to dismiss and plaintiff's motion for summary judgment following a remand from the United States Court of Appeals for the District of Columbia Circuit. American Horse Protection Association v. Lyng, 258 U.S. App. D.C. 397, 812 F.2d 1 (D.C. Cir. 1987) (hereinafter AHPA v. Lyng). The Court of Appeals directed this Court to remand the matter to the Department of Agriculture for the Secretary to provide a more detailed explanation of the decision not to institute amendatory rulemaking concerning the "soring" of horses. The agency has again denied plaintiff's application for rulemaking, and has moved to dismiss this action on grounds that the Secretary has now adequately explained his decision to deny plaintiff's rulemaking petition. Along with its motion the agency has submitted to the Court an explanation for its refusal to institute the rulemaking requested by plaintiff. The declaration of Dr. John K. Atwell, Deputy Administrator for Veterinarian Services, Animal and Plant Health Inspection Services ("APHIS") of the United States Department of Agriculture ("USDA") serves as the Secretary's explanation.

 For the reasons set forth more fully in this memorandum, the Court denies defendant's motion to dismiss and grants plaintiff's motion for summary judgment. The Court directs the Secretary of the Department of Agriculture to institute rulemaking procedures concerning the use of action devices on show horses. The Court holds that the existing regulations are contrary to law and that the Secretary has ignored his mandate from Congress under the Horse Protection Act.


 Congress passed the Horse Protection Act in 1970, finding that the practice of deliberately injuring show horses to improve their performance is "cruel and inhumane." 15 U.S.C. § 1822(1). Known as soring, the techniques practiced include fastening action devices, such as chains or padded shoes to the horses limbs or forefeet, and applying irritating solutions to their forefeet. *fn1" The pain inflicted on sored horses causes them to quickly lift their forefeet and thrust them forward, in a high-stepping gait that is highly prized among breeders of Tennessee walking horses.

 The Horse Protection Act prohibits, among other things, the showing in a horse show of "any horse that is sore," or the sale of any such horse. 15 U.S.C. § 1824(2). Not only did Congress provide civil penalties for violations of the Horse Protection Act, it made it a criminal offense to knowingly violate the act. Id. § 1825. In 1976, Congress amended the Act "to stop an inhumane and harmful practice that the Congress thought would end when it enacted the Horse Protection Act of 1970 (Pub. Law 91-540), but which has not in fact ended." S. Rep. 418, 94th Cong., 1st Sess. 1 (1975). Not only did Congress seek to put an end to the unnecessary cruelty of soring, it also sought to eliminate the competitive disadvantage faced by horse owners who do not practice soring techniques. AHPA v. Lyng, 812 F.2d at 7.

 The D.C. Circuit, in reviewing this case, held that the Horse Protection Act was "clearly designed to end soring." AHPA v. Lyng, 812 F.2d at 6. Congress delegated to the Secretary of Agriculture the power to regulate under the Act. 15 U.S.C. § 1828. The Secretary of Agriculture has delegated the authority to issue regulations under the Horse Protection Act to Dr. Atwell, the Deputy Administrator for Veterinary Services of APHIS, within the USDA. The agency's existing regulations contain a general prohibition against devices likely to cause soreness. 9 C.F.R. § 11.2(a). The Court of Appeals stated that "under a reasonable interpretation of the existing regulations no action device that caused soreness would be considered legal." AHPA v. Lyng, 812 F.2d at 7. The regulations also contain express prohibitions of specific soring devices and techniques. 9 C.F.R. § 11.2(b). Some of the administrative rulings within the Department of Agriculture indicate that where specific prohibitions are listed, those not listed may be allowed. AHPA v. Lyng, 812 F.2d at 7. Finding that language to the contrary contained in one administrative decision did not demonstrate that the Secretary had adopted a reasonable interpretation of the Act, the Court of Appeals concluded that the Secretary had failed to provide a reasonable explanation of his failure to grant the rulemaking petition, "particularly in light of the Auburn study." Id.


 The Administrative Procedure Act provides that interested persons may "petition [the appropriate agency] for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 555(e). When such petitions are denied, the agency involved must give "a brief statement of the grounds for denial." Id. The Court must determine whether the Secretary's refusal to institute rulemaking was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A); AHPA v. Lyng, 812 F.2d at 4. The standard of review in this case is whether the Secretary has provided

an articulated justification that makes a "rational connection between the facts found and the choice made" and follows upon a "hard look" by the agency at the relevant issues.

 Action for Children's Television v. FCC, 564 F.2d 458, 479 (D.C. Cir. 1977) (footnotes omitted); see AHPA v. Lyng, 812 F.2d at 5.

 A refusal to institute rulemaking "is to be overturned 'only in the rarest and most compelling of circumstances,' WWHT, Inc. v. FCC, 211 U.S. App. D.C. 218, 656 F.2d 807, 818 (D.C. Cir. 1981), which have primarily involved 'plain errors of law, suggesting that the agency has been blind to the source of its delegated power.'" AHPA v. Lyng, 812 F.2d at 5 (quoting State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 680 F.2d 206, 221 (D.C. Cir. 1982), vacated on other grounds, 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)). In this case, the D.C. Circuit has stated that "a refusal to initiate rulemaking naturally sets off a special alert when a petition has sought modification of a rule on the basis of a radical change in its factual premises." AHPA v. Lyng, 812 F.2d at 5. If this Court finds that a significant factual predicate of a prior decision not to promulgate a specific rule has been removed, the Court may force the agency to institute rulemaking proceedings. Id.

 The regulation that plaintiff seeks to have amended expressly prohibits specific devices, but does not mention ten-ounce chains or padded shoes. Specifically, plaintiff seeks the Court to set aside the regulations published at 9 C.F.R. § 11.2(b)(1),(2),&(10) as unlawful, *fn2" and to direct the agency to institute rulemaking proceedings to prohibit "action devices" and padded shoes of unrestricted height. Essentially, plaintiff seeks to have additional devices listed in the specific prohibitions in the regulations. Plaintiff contends that a study commissioned by the agency and performed by Auburn University School of Veterinary Medicine reflects the need for amendatory rulemaking.

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