The Auburn researchers clearly found that the use of ten-ounce weights caused soreness to the test horses. The agency cannot gainsay this finding by asserting that these devices may not in all instances result in soring. All the statute requires is that the devices be reasonably capable of causing soreness. The agency has made a lame attempt at discounting the validity of Phase VI of the Auburn study. But it concedes that the results probably would have been no different if its purported defects had been cured. In the same vein, the study indicates, and the agency does not deny, that manipulation of the hoof with padded shoes can cause inflammation. Inflammation is one indicia of soreness, according to the Horse Protection Act. 15 U.S.C. § 1821(3). Padded shoes are thus reasonably capable of causing soreness. Furthermore, the horse show data has been effectively called into question by the concerns raised by plaintiff. Additionally, the agency's own assertion that virtually all Tennessee Walking horses wear action devices, including ten ounce chains and padded shoes, yet only a few are found to be sore suggests that the inspectors are missing through human error some soreness that would be detected by thermography.
This is one of those rare and compelling circumstances in which the agency has been blind to the source of its power, AHPA v. Lyng, 812 F.2d at 5, namely, the Horse Protection Act. There has been a change in the facts relied upon by the agency in 1979 when it issued the existing regulations. Due to technological advances, the researchers were able to discern more exactly the effects of ten-ounce chains and padded shoes on horses.
It is apparent that the agency needs to institute rulemaking proceedings for the additional purpose of gaining data on subjects that it concededly lacks. The agency needs to delve into the rumors and allegations of stewardship (conditioning horses not to react to pain) and the use of substances to mask pain and conceal its physical signs. Perhaps the agency should receive comments, as well, on the possible use of thermography to detect soreness at horse shows.
In sum, the Court holds that in denying plaintiff's rulemaking petition, the agency has acted arbitrarily and capriciously and without regard to the Horse Protection Act, which requires it to ban all devices reasonably capable of causing soreness. The general prohibition against devices that can reasonably be expected to cause soreness, 9 C.F.R. § 11.2(a), is obviously inadequate. Even in the face of the results of the Auburn study, the agency has continued to permit the use of ten ounce chains and padded shoes. The agency has been blind to the source of its delegated power and has failed to take a hard look at the results of the study and their relevance to the Horse Protection Act. Accordingly, the Court sets aside the regulations published at 9 C.F.R. § 11.2(b)(1), (2) & (10) as contrary to the Horse Protection Act, and orders the agency to institute rulemaking proceedings forthwith to promulgate regulations conforming to the requirements of the Horse Protection Act in their stead.
Upon consideration of defendant's motion to dismiss and plaintiff's motion for summary judgment, the oppositions to each motion, the entire record herein, and for the reasons set forth in the accompanying memorandum, it is by the Court this 18th day of March, 1988,
ORDERED that defendant's motion to dismiss be, and hereby is, denied; and it is further
ORDERED that plaintiff's motion for summary judgment be, and hereby is, granted; and it is
ADJUDGED AND DECLARED that the regulations set forth at 9 C.F.R. §§ 11.2(b)(1), (2) & (10) are in contravention of the Horse Protection Act and therefore invalid; and it is further
ORDERED that the Secretary of Agriculture be, and hereby is, directed, forthwith, to institute rulemaking proceedings to promulgate regulations conforming to the requirements of the Horse Protection Act in the stead of 9 C.F.R. §§ 11.2(b)(1), (2) & (10).