Under the 1976 amendments, owners and exhibitors are "absolute guarantors" as to any substance applied to a horse's pasterns, irrespective of whether it was used to "affect a horse's performance," in the words of the ALJ, note 2, or "for the purpose of affecting its gait," in the words of the 1970 definition prior to the 1976 amendments.

The ALJ's only conclusion, that would, if accurate, have indicated that the horse did not meet the statutory definition of a sore horse, is the following (Initial Decision at 9):

Moreover, at the time the horse was examined, according to the two USDA veterinarians conducting this examination, "Sun Ray's Cricket" appeared to move normally and its "way of going" was normal which, I find, shows that the horse, despite its sensitivity, was not suffering "physical pain or distress, inflammation or lameness" when it walked or moved.

However, as stated above, each of the USDA veterinarians expressed his professional opinion, based on the consistent and repeatable results of his palpation, that the horse would experience pain when moving (Tr. 23, 31, 54, 60-61, 71-72, 85-86). There is no evidence to the contrary. Hence, the ALJ's only conclusion supportive of his result is without any support in the record. Both USDA veterinarians testified that a sore horse, that would experience pain when moving (see the transcript references just cited), might still appear to have a normal gait (Tr. 25, 32-35, 37-38, 46, 56-57, 59-60, 72-73, 75). For example, Dr. Hendricks testified (Tr. 25):

Q. Can a horse be sore even if it appears to walk normally?

A. Yes.

Similarly, Dr. Zaidlicz testified (Tr. 59-60):

Q. Can a horse be sore even if it appears to walk normally?

A. Absolutely.

There is no requirement that a horse suffer lameness, or a gait deficit, from the application of a substance that causes it to be sore. As stated in In re Young, 53 Agric. Dec. slip op. at 38-39, 53-54 (Aug. 3, 1994)

(Attached as Appendix A):

53 Agric. Dec. 1301

From my examination of the records in more than 60 Horse Protection Act cases, I have concluded that in most cases, soring does not cause a horse to have a gait deficit, i.e., an impairment in its ability to move normally (see § II(B), infra). Indeed, if that were not the case, there would be no need for the Horse Protection Act, because soring would not be practiced to improve the gait of Tennessee Walking Horses. As stated in In re McConnell, 44 Agric. Dec. 712, 725 (1985), vacated in part, Nos. 85-3259, 3267, 3276 (6th Cir. Dec. 5, 1985) (consent order substituted for original order), printed in 51 Agric. Dec. 313 (1992).

Dr. O'Brien's testimony suggests that he was looking more for a "bad image" horse (i.e., one that would present a bad image in the show ring), rather than for a horse that was in some degree of pain. For example, he testified that "a sored horse really should be reluctant to move on any type of surface if he is sore enough to be sore as pertains to the Act" (Tr. 542). But the remedial purposes of the Act would be thwarted if such a narrow interpretation of the Act were followed. The legislative history of the Act shows that Congress wanted to prevent the type of soring which improves the performance of a horse in the show ring-not merely excessive soring making the horse reluctant to move (Appendix, Stamper, slip op. at 56-58).

Furthermore, the Act expressly defines a "sore" horse as one that "suffers, or can reasonably be expected to suffer, physical pain . . . or lameness when walking, trotting, or otherwise moving" because of a man-made cause (15 U.S.C. § 1821(3)(D) (emphasis added)). "In statutory construction 'or' is to be given its normal disjunctive meaning unless such a construction renders the provision in question repugnant to other provisions of the statute." In re Beef Nebraska, Inc., 44 Agric. Dec. 2786, 2811-12 (1985), aff'd, 807 F.2d 712 (8th Cir. 1986), quoting from Gay Union Corp. v. Wallace, 112 F.2d 192, 197 n.15 (D.C. Cir.), cert. denied, 310 U.S. 647 (1940). Accord United States v. Field, 255 U.S. 257, 262 (1921). Hence, lameness, in addition to pain, is not required.

Considering all of the Horse Protection Act cases decided by the Judicial Officer from June 29, 1990, to the present28 (not involving the irrebuttable presumption created by the Scar Rule

28 No Horse Protection Act cases were decided by the Judicial Officer from September 12, 1985, through June 28, 1990.

[(9 C.F.R. § 11.3)]), the evidence as to 19 of the 25 horses, or 76%, consisted entirely of the reaction of the horses to palpation." Even as to the other six horses in which there was some evidence of a

In re Burks, 53 Agric. Dec.

slip op. at 8-10, 23-26 (June 24, 1994); In re Tuck (Decision as to Eddie C. Tuck), 53 Agric. Dec. slip op. at 8-23, 30, 34-45 (June 10, 1994) (two horses), appeal docketed, No. 94-1887 (4th Cir. July 8, 1994); In re Martin, 53 Agric. Dec. slip op. at 16-17 (Mar. 16, 1994), appeal docketed, No. 94-3394 (6th Cir. Apr. 12, 1994); In re Bobo, 53 Agric. Dec. slip op. at 32-36 (Jan. 12, 1994) (same horse, two shows), appeal docketed, No. 94-3311 (6th Cir. Mar. 24, 1994); In re Kelly, 52 Agric. Dec. 1278, 1288-95 (1993), appeal docketed, No. 94-1447 (8th Cir. Feb. 18, 1994); In re Sims (Decision as to Charles Sims), 52 Agric. Dec. 1243, 1253-62 (1993); In re Watlington, 52 Agric. Dec. 1172, 1187-92 (1993) (one of two horses); In re Roach (Decision as to Calvin L. Baird, Sr.), 52 Agric. Dec. 1092, 1101-02 (1993), appeal docketed, No. 93-3975 (6th Cir. Sept. 10, 1993); In re Wagner (Decision as to Roy E. Wagner and Judith E. Rizio), 52 Agric. Dec. 298, 308-13 (1993), aff'd, No. 93-3318 (4th Cir. Mar. 15, 1994) (unpublished); In re Callaway, 52 Agric. Dec. 272, 284-89 (1993); In re Brinkley (Decision as to Doug Brown), 52 Agric. Dec. 252, 262-66 (1993); In re Holt (Decision as to Richard Polch & Merrie Polch), 52 Agric. Dec. 233, 242-43 (1993), aff'd per curiam, No. 93-3369 (6th Cir. July 27, 1994) (unpublished) (not to be cited as precedent under 6th Circuit Rule 24); In re Elliott (Decision as to William Dwaine Elliott), 51 Agric. Dec. 334, 341 (1992), aff'd, 990 F.2d 140 (4th Cir.), cert. denied, 114 S.Ct. 191 (1993); In re Smith, 51

53 Agric. Dec. 1301

Agric. Dec. 327, 328-31 (1992); In re Sparkman, 50 Agric. Dec. 602, 612-14 (1991); In re Holt, 49 Agric. Dec. 853, 856-57 (1991); In re Edwards, 49 Agric. Dec. 188, 195-97, 204-06 (1990), aff'd per curiam, 943 F.2d 1318 (11th Cir. 1991) (unpublished), cert. denied, 112 S.Ct. 1475 (1992).

slight gait deficit (usually failing to lead freely with a loose rein, and sometimes tucked under),30 the primary evidence in each case was the palpation evidence.

30 In re Jordan (Decision as to Sheryl Crawford), 52 Agric. Dec. 1214, 1229, 1235 (1993), appeal docketed, No. 93-1852 (D.C. Cir. Dec. 20, 1993); In re Watlington, 52 Agric. Dec. 1172, 1192 (1993) (one of two horses); In re McConnell, 52 Agric. Dec. 1156, 1160 (1993), aff'd, 23 F.3d 407 (Table) (6th Cir. 1994) (text in WESTLAW); In re Crowe, 52 Agric. Dec. 1132, 1152 (1993); In re Roach (Decision as to Calvin L. Baird, Sr.), 52 Agric. Dec. 1092, 1101-02 (1993) (one of two horses), appeal docketed, No. 93-3975 (6th Cir. Sept. 10, 1993); In re Gray, 52 Agric. Dec. 1044, 1073-74 (1993), appeal docketed, No. 93-3875 (6th Cir. Aug. 20, 1993).

The ALJ wrote in his "Discussion" section, as follows (Initial Decision at 6) (Emphasis added by the Judicial Officer):

Thus, because of this presumption [(15 U.S.C. § 1825(d)(5))] the Secretary does not require the complainant to prove the method used to make the horse sore or prove that the method will reasonably be expected to cause the horse pain when it walks or moves. Larry Edwards, 49 Agric. Dec. 188, 205 (1990); Pat Sparkman, 50 Agric. Dec. 602, 614 (1991). The complainant also does not have to prove that the owner or exhibitor intended to sore the horse, or even to prove that the owner or exhibitor knew the horse was sore. Eldon Stamper, 42 Agric. Dec. 20, 44 (1983). If the complainant shows that the horse has bilateral abnormal sensitivity, it is presumed, without more, to be sore as defined in the Act. This presumption, however, is rebuttable. Jackie McConnell, 44 Agric. Dec. 712, 721 (1985)[, vacated in part, Nos. 85-3259, 3267, 3276 (6th Cir. Dec. 5, 1985) (consent order substituted

for original order), printed in 51 Agric. Dec. 313 (1992)].

The ALJ erred in the above-italicized passage that states that the rebuttable presumption is responsible for the Complainant not having "to prove the method" of soring. The presumption does not cause this, and the Edwards and Sparkman cases, to the contrary, do not say that it does. In fact, both cases cited (Edwards and Sparkman), on the pages listed, merely quote a paragraph from the Holcomb case, on identification of the soring agent, as follows (see Edwards, and Sparkman, supra):

In In re Holcomb, 35 Agric. Dec. 1165, 1167 (1976), it is stated:

It is to be expected that in many, if not most, cases under the Horse Protection Act, the only evidence of soring will be the expert opinion of a veterinarian who testifies on the basis of his observation or examination that in his professional opinion, a particular horse was sored by the use of some chemical or mechanical agent, for the purpose of affecting its gait. It should be further expected that the veterinarian will frequently not be able to tell whether the soring agent used was mechanical, or chemical, or both. Unless this remedial statute is to be rendered sterile, the Government should not be required to prove the soring device or agent applied in a particular case.

Although Complainant did not prove the method of soring in this case, as stated above, both USDA veterinarians ruled out natural causes for the consistent and repeated responses to palpation, such as a nervous or highstrung horse, a horse silly about its feet, or accidental injury or disease (Tr. 22-24, 31, 53-54, 57-59, 71-72). Moreover, the ALJ's Findings, not challenged on appeal, are that the substance applied by Respondent to the horse's pasterns caused the abnormal bilateral sensitivity in the horse's front pasterns (Initial Decision at 9).

The ALJ is correct that, under the statutory presumption, a rebuttable presumption is raised that the horse is sore if it "manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs" (15 U.S.C. § 1825(d)(5)), even without proof "that the method will reasonably be expected to cause the horse pain when it walks or moves" (Initial Decision at 6). However, in most cases, as in the present case, Complainant does offer proof that the horse would suffer pain when moving. And Complainant must