A U.S. Department of Agriculture veterinarian inspects a Tennessee walking horse for signs of soring prior to competition.
As the 118th Congress convenes for the first time this week, the outlook remains cloudy for improving enforcement of federal laws against the soring of walking horses.
Soring is the practice of cutting, burning or otherwise inflicting pain on a horse's lower forelegs and feet so that it lifts its legs higher in an attempt to escape the discomfort. The exaggerated gait, known as the "big lick," wins equine show competitions.
For the past 10 years, the Prevent All Soring Tactics Act (or PAST Act) has stalled repeatedly due to opposition from Kentucky and Tennessee senators. These states are home to the majority of walking horse farms and competitions. Walking horses have a distinctive gait, known as a running walk.
While the bill is expected to be reintroduced in the new session, a lobbyist who had been one of the most ardent supporters of the PAST Act now favors revising it in significant ways.
The reason, said the lobbyist, Marty Irby, executive director of Animal Wellness Action, is that he believes pursuing the original legislation is futile. "The PAST Act as written is a complete lost cause," he told the VIN News Service.
Irby started feeling this way in 2019, and came to believe that the effort needed a change of strategy. He worked with leaders in the walking horse industry to create a revised version of the PAST Act, sometimes called "the compromise," which is circulating among stakeholders. Irby believes the compromise improves on the original legislation with the advantage of also being "palatable" to Kentucky and Tennessee senators.
The Humane Society of the United States, with which Irby once sided on this issue, strongly disagrees. The compromise would perpetuate the soring problem, said Keith Dane, the HSUS senior director of equine protection. As for countering lawmaker objections, Dane said, "We're convinced that eventually, either they will no longer be in the Senate, or we will convince them that they've taken the wrong path."
On a parallel track, the U.S. Department of Agriculture is developing a regulatory approach to fixing the soring problem.
Elements of the compromise
The PAST Act would amend the Horse Protection Act. Although the 1970 law attempted to eradicate soring, the practice persists due to weak penalties, lax enforcement and the fact that soring devices are still permitted.
The PAST Act would make soring a horse flatly illegal. Right now, it is illegal only to transport, show or auction a horse that's been sored. The legislation also would also prohibit the use of "action devices," such as collars or chains that rub up and down already sore forelegs, as well as weighted shoes, wedges or pads that alter the horse's gait. In addition, it ends self-policing by the walking horse industry by putting inspections in the hands of USDA-licensed and -trained inspectors.
The bill applies specifically to Tennessee walking horse, racking horse and spotted saddle horse breeds, which have historically been subjected to soring.
In 2019 and again in November, the bill passed the U.S. House of Representatives by wide majorities and with broad bipartisan support before dying in the Senate.
Irby said he knew Senate opposition would follow the first big House win, so that's when he changed tactics and began working on the compromise.
The compromise would outlaw ankle chains and most pads, but would allow for some version of a "weighted shoe" by defining dimensions and materials of a "shoe assembly" permitted for "balancing the horse." Irby said a key reason for opposition by the walking horse industry to the language of the PAST Act is that it does not define weighted shoes.
The revised draft also creates a supplemental nongovernmental body comprised of some members from industry that would assign USDA-licensed inspectors to shows and issue fines and suspensions. Irby said this organization would not interfere with USDA inspections or legal actions against anyone who sores a horse, but would augment the agency's efforts.
"I think most everybody agrees the USDA has not done their job fairly and consistently over the past 50 years," Irby said.
The compromise also would create a complex, multiphase inspection process, which Irby said is designed to ensure that any legal action taken against someone for soring is based on "scientifically verified inspection methods" and "not an inspector's opinion."
The revision also bans the possession of devices not addressed in the PAST Act, such as alligator clips that can be fixed to a horse's genitals. Irby calls them "distraction devices" because they are used "to distract [the sored horse] from the pain in their feet while they're being inspected," he said.
"It was like getting 90% of the PAST Act, plus some other stuff," Irby said. "I thought this was actually a better deal, but the Humane Society [of the United States] and others were against it."
Opposed to the compromise
Dane at the HSUS fundamentally rejects the premise that groups such as the Tennessee Walking Horse Breeders and Exhibitors Association and the Tennessee Walking Horse Celebration should be involved in writing the rules. He said these groups have rewarded trainers and owners who showed sored horses, failed to impose meaningful penalties or deterrents on violators and had a poor track record in Horse Protection Act enforcement.
"Their ability to participate in a compromise bill that is actually going to end soring is almost nonexistent," he said.
More than 30 equine and veterinary organizations, including the American Association of Equine Practitioners, the American Veterinary Medical Association and the U.S. Equestrian Federation expressed opposition to the compromise draft when it first circulated in late 2020, according to the American Horse Council.
Among objections to the compromise is that it permits the use of pads, "not as tall as the current platform shoes that are allowed [now], but still some degree of pads — that can be used to hide intentional damage inflicted on the horse’s sole, or hard or sharp objects inserted under the pads, all to cause pain," Dane said. "Other breeds use pads, but not to cover up the intentional infliction of pain."
He also said the allowance for leather boots is a problem. Dane said, "They're not as heavy as the chains or rollers that are allowed now but they still could be used as action devices."
As to the proposed supplementary organization, Dane said, it would undermine, rather than bolster, the USDA's enforcement role.
A Humane Society document listing concerns about the compromise also calls out the inspection regime, saying the "convoluted and deeply flawed testing protocol … seems designed to miss soring cases, with intense micromanaging of which tests inspectors can do, in what order, and when to pass a horse."
Pursuing a regulatory fix
As anti-soring activists debate the best legislative path forward, reform could come from another quarter: a USDA rule change. It almost happened in the final days of the Obama presidency. In early January 2017, the USDA posted on its website proposed regulations that contained many of the provisions in the PAST Act.
However, in what has been described as a "clerical error" by members of Congress, the new rule was not published in the Federal Register before the inauguration of Donald Trump on Jan. 20. That day, the new administration froze all pending regulation. The anti-soring rule change — along with 859 other pending regulations — were thrown into limbo.
The Humane Society sued USDA, saying the rule had been withdrawn unlawfully and should be enforced. After a district court dismissed the case, the HSUS appealed. In July, the United States Court of Appeals for the District of Columbia agreed with the Humane Society and sent the ruling back to the district court to determine the next steps.
But before the ruling, the USDA Animal and Plant Health Inspection Service announced at the end of 2021 that it was withdrawing the ill-fated regulation and was "making the development of a new and improved HPA proposal a top regulatory priority."
Unlike the withdrawn rule, the new version will incorporate findings from a 2021 review of methods for identifying soreness in horses. The recommendations urge repeatedly that veterinarians, particularly those with equine experience, be deployed as inspectors.
Lyndsay Cole, spokesperson for the USDA APHIS, said the agency has no timeline for when the proposed rule will be issued.
A new rule could face some of the same obstacles as legislation.
Irby predicts a fight, if the rule doesn't back off some of the restrictions it shares with the PAST Act, such as not defining "weighted shoes."
A Dec. 9, 2022, article in The Walking Horse Report described the industry's plan to raise between $1.5 and $2 million for a possible legal challenge of a final rule.
Kevin Shea, administrator of the USDA APHIS, referred to the possibility of an industry challenge to new rules in an interview with the American Veterinary Medical Association this summer. "There are people opposed to what we do in horse protection, and they're not shy about suing us," he reportedly said. "So when we put a regulation in place, we want it to be as airtight as possible."