Tennessee Horse Show Picks Texas to Challenge Rule Post Chevron

Show horse owners were eager to challenge a new animal protection rule following the US Supreme Court’s decision to limit the power of federal regulators.

Three days after a majority of the justices overturned a legal principle that had directed courts to defer to an agency’s reasonable interpretation when a law is unclear, The Tennessee Walking Horse National Celebration Association filed a lawsuit with two show horse owners challenging an Agriculture Department regulation that aims to crack down on horse soring.

And it did so in Amarillo, Texas, though the association is based and runs Tennessee Walking Horse shows 974 miles away in Shelbyville, Tenn.

The lawsuit filed July 1 shows the lengths to which litigants will go to get their case before US District Judge Matthew Kacsmaryk, a Donald Trump appointee who routinely rules against Biden administration policies and is the only judge assigned to cases filed in that division.

“It has all of the signs that this was filed in Amarillo on purpose,” said Steve Vladeck, a Georgetown Law professor who teaches civil procedure and federal courts.

Two horse owners–Kimberly Lewis and Tom Gould–named in the complaint live in the Northern District of Texas, which allows the association to file in Amarillo.

But “the notion that these plaintiffs found the national lawsuit as opposed to the national lawsuit found them is a little hard to believe,” Vladeck said.

Lewis owns 38 Tennessee Walking Horses and Gould owns two. Both say the value of their horses will be wiped out if the USDA rule is allowed to take effect Feb. 1, 2025.

The rule bans any device, method or practice that can mask evidence of horse soring, which is the act of intentionally inducing pain in a horse’s legs or hooves to exaggerate their gait. It specifically prohibits action devices like chains from being used on the limbs or feet of Tennessee Walking Horses and Racking Horses, in addition to pads, wedges, and lubricants.

“Soring has been used almost exclusively in the training of certain Tennessee Walking Horses and racking horses,” the Agriculture Department said in its final rule.

Chevron Effect

The lawsuit, which was identified by Accountable.US, appears to be the first challenge to an agency regulation filed in the Amarillo Division following the Supreme Court’s blockbuster decision June 28 to scrap Chevron in Loper Bright Enterprises v. Raimondo.

“This is a prime example of how quickly anti-regulation groups are moving to reap the rewards of the new regulatory landscape created by the Supreme Court conservative majority’s power grab ruling to overturn Chevron deference,” Caroline Ciccone, president of Accountable.US, a progressive government watchdog group, said in a statement.

“In this case, the Tennessee Walking Horse National Celebration Association ran straight to Judge Matthew Kacsmaryk’s courtroom—notorious as a judge shopping hub and key target for anti-regulation rulings—to all but guarantee a favorable ruling,” Ciccone said.

A search in Bloomberg Law’s docketing system for district court cases that specifically cite the Supreme Court’s decision showed seven new lawsuits challenging agency regulations have been filed since the court’s ruling.

The Tennessee Walking Horse association’s complaint doesn’t specifically mention Chevron or Loper Bright but it does challenge the agency’s authority under the Horse Protection Act.

“The HPA gives the Agency authority to ban only practices that cause soring,” the challengers said in the court filing. “But scientific evidence—both old and new—make clear that this equipment does not cause soring.”

Attorneys for the association and the two horse owners didn’t respond to a request for comment. A spokesperson for the Agriculture Department declined to comment.

“This is exactly the kind of small bore regulatory challenge that we can expect to see much more of in the wake of the Supreme Court’s recent administrative law decisions,” Dan Walters, who teaches administrative law at Texas A&M University School of Law, said in an email.

“It doesn’t seem to me like the challengers have much of a case under conventional administrative law doctrine, but in light of the forum and the uncertainties recently injected into the case law by Loper Bright and Ohio v. EPA, anything could happen,” he said.

In Ohio v. EPA, the Supreme Court blocked the Environmental Protection Agency’s ozone emission rule in a decision that called into question the agency’s rulemaking process.

Syracuse University College of Law professor Katherine Macfarlane isn’t convinced the challengers in this case specifically tried to shop for a preferred judge or timed their filing to follow the Chevron decision. Either way, the civil procedure expert said any plaintiff in the US who wants to challenge an agency action now has a better argument because courts no longer have to defer to the agency.

“If I had a case that presented the ability to undo agency action in a way that aligned with predictable Kacsmaryk political faultlines, it’s a good time to file in front of Judge Kacsmaryk,” she said.

Regulatory Taking

The Tennessee Walking Horse association and show horse owners want Kacsmaryk to toss out the rule and compensate the owners who say they won’t be able to compete in the Performance Division at Tennessee Walking Horse shows if the ban on pads and devices is allowed to take effect.

These competition horses, which are known for their high-stepping strut, can sell for as much as $350,000 to $500,000 and because the new rule deprives owners and trainers of that value, it constitutes a regulatory taking, they argue.

The argument is one that could make regulatory policymaking much more difficult if courts accept this claim, said Paul Nolette, director of the Les Aspin Center for Government, which is part of Marquette University. Nolette’s research has focused on the interplay between politics and law.

At the very least, Nolette said it’s worth watching to see if other conservative litigants try to push these claims in the hopes of achieving a landmark ruling from the Supreme Court.

While regulatory takings claims are not unusual, Vladeck said it’s a bit of a stretch to say an Agriculture Department rule to protect animals from soring constitutes a taking.

“But one of the reasons why people like filing in Amarillo is because Judge Kacsmaryk is not afraid of stretches,” he said.

The case is Tennessee Walking Horse Nat’l Celebration Ass’n v. United States Dep’t of Agric., N.D. Tex., No. 24-cv-00143.