A. In The Beginning

The high stepping walk of the Tennessee Walking Horse as his weight shifts to his powerful hindquarters, is breathtaking to watch in the show arena. It’s National Celebration time, an event held annually in Shelbyville, Tennessee, attended by thousands of spectators, owners and trainers, and often the Governor of the State. The pressure to win is overwhelming, particularly the coveted title, “World Grand Champion” which is bestowed on one extraordinary horse a year.

As the Tennessee Walking Horse breed improved through the 1930’s and 40’s and started competing more steadily with the showy Saddlebred horses,
the “big lick” performance horse emerged. By the
late 1960’s and early 1970’s, stacked pads were added beneath horseshoes and weighted metal
chains were placed around the coronet (ankle). The exaggerated front leg action, drew spectators to the horse shows and increased the popularity of the breed.

Many decent and honorable people trained their horses to achieve the show gaits naturally and comfortably. Others chose a cruel short cut to produce an exaggerated action in a hurry. In the 1950’s, trainers started to apply caustic chemicals to the pasterns (area just below the ankles) of show horses – sensitizing the area and forcing the horse to lift his front legs high off the ground in an attempt to avoid pain. The horses may be ridden with metal chains around their ankles, which further accentuates the high-stepping action with each painful stride. The horses shift their weight to their back legs as they try to relieve the pain in the front feet and often walk with a “squatting movement.” This abusive practice of causing pain to the horse’s pasterns or front feet is known as “soring.”

One popular method of soring is chemical soring. This involves applying a caustic chemical agent to the front pasterns of the horse. One common agent is mustard oil. N-croton oil, salicylic acid, kerosene, and diesel fuel are also agents frequently used for chemical soring. The legs are frequently wrapped with plastic wrap to allow the chemicals to penetrate the skin. Sored horses would be shown with open sores on their pasterns. Boots were used instead of chains during this time, as they had the dual purpose of causing irritation to the sores and hiding the open sore from spectator’s view. It is also known that exposure to these agents can often cause health problems to the horses, including muscle contractions gastrointestinal changes, heart and liver problems, fertility issues and fetal loss in pregnant mares.

Another method of soring is called pressure soring. Objects such as metal beads, nails, or screws are placed under the shoes or pads on the horse’s front feet to cause pain. Horses may also be road foundered by riding them excessively on hard surfaces. Pressure soring can also be achieved by cutting a horse’s hoof too short and applying the shoes, or applying piano wire or other thin wire around the area just below the hairline and tightening it, or standing a horse on wood or metal blocks that apply pressure to the sensitive sole of the horse’s foot. By the 1960’s and 1970’s, soring was extremely prevalent in the Tennessee Walking Horse show world, prompting federal intervention.

C. The Horse Protection Act (15 U.S.C. §§ 1821-1831)

In 1970, the Congress passed the Horse Protection Act (“HPA”), a federal law that prohibits the showing, sale, auction, exhibition, or transport of sored horses. See, H.R. Rep. No. 9101597, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4870, 4871-72. Congress found and declared that the soring of horses is cruel and inhumane, and that sored horses, when shown or exhibited, compete unfairly with horses that are not sore. The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) enforces the HPA.

The responsibility to enforce the law fell to the Veterinarian Medical Officers (VMSs) of the USDA’s APHIS. But Congress failed to fund the USDA to carry out its duty. Instead, Congress expanded the inspection program, allowing the very industry for which the law was written to train is own inspectors. See, H.R. No. 94-1174, 94th Cong., 2d Sess. (1974) at 4-5, 6, reprinted in 1976 U.S. Code Cong. & Admin. News 1696, 1699, 1701. People trained to detect soring, called the Designated Qualified Persons (DQPs) must meet the requirements set forth in 9 CFR section 11.7, and must be licensed by a Horse Industry Organization (HIO) certified by the USDA.

The Act gives the management of a horse show or sale the statutory responsibility of identifying sored horses and preventing them from participating in these events. Representatives of the USDA and/or DQP’s, are sent to horse show to inspect any horse for signs of soring before they enter the arena. Any horse that wins first place at the Tennessee Walking Horse Show or exhibition must be reinspected for signs of soring after the winning class.

In 1976, Congress revised the definition of “sore” to eliminate requirements that the soring be done with the intent to affect the horse's gait, See, H.R. Rep. No. 94-1174 at 2, reprinted in 1976 U.S.Code Cong. & Admin. News 1696. Consistent with the congressional purpose, section 1824 prohibits the showing of a sore horse or allowing a sore horse to be shown; it contains no express element of intent. 15 U.S.C. § 1824(2) (1976) Further, the 1976 substitution of “sore” for “sored” implies that the offense focuses on the condition of the horse, not on the actions of the owner or exhibitor. See, Pub.L. No. 91-540, § 2(a), 84 Stat. 1404 (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 1638.

The 1976 amendment also added a statutory presumption that a horse is sore if it manifests abnormal sensitivity or inflammation in both of its forelimbs or hind limbs. Id. See, 15 U.S.C. §§ 1821(3), 1825(d)(5). It is also well settled that the presumption of soreness is rebuttable. Zahnd v. Sec’y of Dep’t of Agriculture (11th Cir. 2007) 479 F.3d 767, 772. There were later attempts to alter the HPA in 1999, 2000, and 2001, to call for an Operating Plan (OP) to clarify procedures and penalties. Each time, the OP was opposed by the majority of the Horse Industry Organizations that put on the shows. One of the hot issues of the OP was the “scar rule” which eliminated horses from competition that show obvious signs of having been sored in the past, regardless of whether or not they were sore at the time of the competition.

E. Avoiding Detection – Or Not

Those who sore often justify the practice as the only way to protect their livelihood. As former United States Department of Agriculture veterinarian Tom James says, “As long as the “big lick” wins at shows, the trainer must produce it to stay in business . . . The day a trainer stops producing “big lick” horses is the day all horses in his or her barn are removed and taken to another trainer. The pressure is enormous.” (King, Maria. “A Sore Issue: The Debate on Soring.” Horse Illustrated, July 2004.)

To avoid detection, some trainers bypass the inspectors by training their horses not to react to the pain and palpation or hoof testing. They severely punish the horse for flinching after the sored area is palpated. Creams can be used to minimize scarring, and topical antiseptics such as lidocaine or benzocaine numb the pain. Certain chemicals can be applied so that the agent will not be detected when the horse is examined, but will be in effect when the rider goes into the ring. Trainers also will leave the show grounds if they realize that more stringent Federal inspectors are present.

In 2006, the USDA began a larger crackdown on soring within the industry with new techniques in soring detection. Swabbed samples are taken from the horse and then sent to a trandem mass spectrometer at another site. The tandem mass spectrometer can detect and identify the chemicals present on a horse’s legs.

F. Penalties for Violations of the Horse Protection Act

Civil and criminal charges can be brought against violators of the HPA. 15 U.S.C. § 1825. If convicted, a violator can spend up to 2 years in prison and received penalties of up to $5,000. Civil penalties can be imposed through administrative procedures, resulting in disqualifications of one or more years and penalties up to $2,200 or more per violation. Disqualified person may only attend horse events as spectators. They are not allowed to participate in any other fashion, and the sored horse is also banned from competition. These fines and suspensions from competition for allowing sore horses to be shown is not an abuse of discretion because the sanctions are within the range authorized by Act See, Stamper v. Secretary of Agriculture, supra, 722 F.2d at 1489.

G. Cases Applying The Horse Protection Act’s Enforcement Policies

In Lacy v. U.S. Dept. of Agriculture (6th Cir. 2008) 278 Fed. Appx, 616, the United States Department of Agriculture (USDA) found that a horse owner failed to rebut the statutory presumption that his horse was sore within the meaning of the Horse Protection Act. The owner presented testimony of a veterinarian that the horse had reacted with hypersensitivity associated with encephalitis resulting from West Nile Virus rather than soring during its inspection prior to show. Id. at 622. However, substantial evidence, including declarations and documents in the record from veterinarians and show inspectors supported that the horse was sore when its owner presented it for inspection. The horse exhibited pinpoint pain responses solely in the front surfaces of the pasterns, which was indicative of soring, not the West Nile Virus. Id. at 620, 622. The Court of Appeals affirmed the USDA decision.

In the Stamper case, a Tennessee Walking Horse named “Playboy,” was shown in Sacramento, California on September 22, 1979. Twenty to thirty minutes prior to his exhibition, “Playboy” was examined and passed by a nonveterinarian DQP assigned to inspect horses for violations of the Act. After the show, Departmental inspectors selected Playboy for a second examination because he appeared in distress. The Departmental veterinarians concluded that Playboy was sore in violation of the Act. Playboy had extensive loss of hair, callus formations, and raw abrasions in the pastern area of both of his forelimbs. Both of “Playboy’s” front pasterns were palpated, using a dabbing motion with about as much pressure as used to feel a person's pulse, and both forelimbs were found to be abnormally sensitive. The veterinarian in charge, next examined “Playboy” and noted seepage of blood-tinged serum from the posterior and anterior aspects of the pasterns, and a bilateral condition that suggested misuse of action devices. Stamper, supra, 722 F.2d at 1485.

“Playboy's” co-trainer next examined the horse, and according to the other trainer who testified during the hearing, the horse showed no reaction to this examination. The final examination was by the DQP. In response to his palpation of the first pastern, “Playboy” violently jerked back, hitting the stall wall. The DQP also observed the abrasions, and concluded that the injuries were caused by overuse of action devices. Id. at 1485.

At a hearing held in 1981, the Department's Administrative Law Judge (ALJ) concluded in her initial opinion that Playboy's abrasions and reactions were caused by factors not prohibited by the Act. Nevertheless, she found the trainer and owners in violation on the theory that the statutory presumption of soreness was irrebuttable. The Department's Judicial Officer, however, remanded on grounds that the statutory presumption was rebuttable. On remand, the ALJ held that the statutory presumption of soreness was rebutted, and that “Playboy” was not “sore” within the meaning of the Act. The ALJ held Playboy's reactions may have been caused by the number and manner of examinations by Departmental inspectors, sand and grit from the arena rubbing on the pasterns, “Playboy's” striking himself, the presence of a tail brace, or stretching of the leather bands holding the action devices in place. Stamper, supra, 722 F.2d at 1486.

The Judicial Officer reversed the ALJ. He held “Playboy's” injuries stemmed from the use of action devices at the show, coupled with a preexisting callus buildup on the pasterns. The Judicial Officer further held that the owner and the exhibitor are “absolute guarantors” of the horse's condition, so that even if other factors exacerbated the injuries, the trainer and co-trainer should have considered those factors before using action devices. Id. at 1486. Finally, the Judicial Officer held that the owner need not know of the sores to be held liable under the Act. He imposed fines of $2,000 on the owners and $750 on the trainer, and suspended all three from showing horses for one year. Ibid.

The Ninth Circuit Court of Appeals affirmed the Judicial Officer’s decision finding that no “intent” to violated the Act was required. The testimony indicated that the owners did not affirmatively order the trainer to show Playboy with knowledge that he was sore. Nonetheless, the owners allowed a sore horse to be shown because they did not expressly order the trainer not to show “Playboy.” Id. at 1487-1489.

To find out more about the HPA, you can visit the APHIS Web page at www.aphis.usda.gov or send an e-mail to ace@aphis.usda.gov. You can also contact the agency at:

4700 River Road, Unit 84
Riverdale, MD 20737-1234
Telephone: (307) 734-7833
Fax: (307) 734-4978

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