Livestock and Recreation
By Adda Quinn, Judy Baskin, Judy Teichman and Sigrid White

Are horses livestock, pets, or companion animals? Including horses in the definition of livestock has recently been a topic for debate. For example:

• Horses are omitted from the definition of livestock in the Local Coastal Program (LCP) for San Mateo County, which has left the door open for special regulations of horses in the unincorporated part of the County.
• A recent State law that forbids transport of horses to slaughterhouses has raised questions about how the horse is defined.
• The federal government uses a "food or fiber" test to determine whether livestock qualifies for certain grants, and considers horses "agricultural" if they work on a cattle ranch or otherwise "recreational". However, in most federal references on waste management, NPDES, etc the horse is considered along with other commercially raised food production livestock. According to Lisa Shanks of the USDA RCD in Petaluma, the USDA regards all 1000 pound animals as 1AU (pers con 3-27-01). Similarly, the BLM and other federal land agencies that lease grazing land consider the horse as 1AU.

We contend that the horse is fundamentally livestock. Although horses may also be companion animals often used in recreation, they have never been defined as pets. In support of our contention, we offer the following references and citations that classify horses as livestock. This information may prove useful in the future for horsemen where recreation use is proposed.

Livestock
Webster's Dictionary (1977) defines livestock as animals kept or raised for use or pleasure.

Livestock in the California Code of Regulations
Judy Baskin of SMCHA has provided us with the following research results (2001) confirming that horses are livestock as defined by regulation:

California Civil Code

• Section 3080. "Livestock means any cattle, sheep, swine, goat, or horse, mule or other equines".

California Business and Profession Code

• Section 12731. (a) Notwithstanding any other provisions of this code, where livestock is sold on the basis of weight at a public sales yard, or by or at any livestock market, market agency, or dealer which is subject to the Packers and Stockyards Act of 1921 (7 U.S.C. Sec. 181 et seq.), the livestock shall be weighed by a weighmaster, and a weighmaster certificate shall be issued to the buyer and seller.
  (b) The term "livestock" includes cattle, sheep, swine, horses, mules, and goats.

California Food and Agriculture Code

• Section 55701. As used in this article, the following definitions shall apply:
  (a) "Livestock" means any cattle, sheep, swine, goat, or any horse, mule, or other equine, whether living or dead.
  (b) "Meatpacker" means an establishment where livestock are either slaughtered, the carcasses thereof are prepared, or meat is processed and where state or federal inspection is maintained.

• Title 23, California Code of Regulations, Waters; Division 3, State Water Resources Control Board; Chapter 15, Discharges of Waste to Land. Confined Animal Facility: "Confined animal facility" means any place where cattle, calves, sheep, swine, horses, mules, goats, fowl, or other domestic animals are corralled, penned, tethered, or otherwise enclosed or held and where feeding is by means other than grazing."

Cal Business and Professional Code

• Section 4825.1(d) in reference to veterinary practice: Animals…raised, kept, or used for profit, and not including those species that are usually kept as pets such as …companion animals, including equines1 (see end note) 1 The term "companion animal", although used in the definition of "livestock" under Cal Bus and Prof Code 4825.1(d), was not found or otherwise defined elsewhere in the California Code.

California Food and Agriculture Code

• Section 14205 in reference to livestock drugs: Animals…raised, kept, or used for profit, and not including those species that are usually kept as pets such as dogs, cats, and pet birds.

California Tax Code

• Section 39-26-102 (5.5) on Sales tax: Cattle, horses, mules, burros …regardless of use, and any other animals which is raised primarily for food, fiber, or hide production.

California Vehicle Code

• Section 21759. The driver of any vehicle approaching any horse drawn vehicle, any ridden animal, or any livestock shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signalled or otherwise requested by any person driving, riding or in charge of the animal or livestock in order to avoid frightening and to safeguard the animal or livestock and to insure the safety of any person driving or riding the animal or in charge of the livestock.
• Section 21050. Every person riding or driving and animal upon the hiway is subject toa all the duties applicable to the driver of a vehicle.

In a survey done by MultiState Associates, horses are defined similarly as Livestock in numerous other states. Our thanks to them and Wayne Stutz of the American Quarterhorse Association for providing this helpful data.

USEPA Definitions
An "Animal Feeding Operation" (AFO) is defined as a "facility where animals are stabled or confined for more than 45 days out of a 12 month period and on which no crops, vegetation or forage are sustained during the normal growing season." Quite obviously, most stables, arenas, commercial ride vendors and other equine facilities could fall within this definition. (See CCC Title 23 above)

Horses and Recreation

Judy Teichman of MarinWatch has provided the following research that may prove useful the equestrians in the future (2001).

California GOVERNMENT CODE SECTION 54000-54005

• 54000. Upon application to the Department of Transportation, a flood control district, county, or city, and subject to any conditions imposed by it, permission may be granted to any person, or riding club to enter, traverse, and use for horseback riding, any trail, right of way, easement, river, flood control channel, or wash, owned or controlled by the state, a city, or county.
• 54001. A fee shall not be charged for the use of such bridle paths.
• 54003. An equestrian group may be granted the right to erect and maintain suitable trail markers for the convenience and guidance of horseback riders, but a structure shall not be erected on state-owned property without the approval of the State Lands Commission.
• 54004. It is unlawful for any person to remove, deface, or destroy the markers, or to erect fences, barbed wire, or other obstructions on the bridle trails.
• 54005. The granting power may extend, terminate, or modify its permission at any time.

The following was researched and provided by Sigrid White of the West Coast Horse Association:

California CIVIL CODE Recreational Use Statute DIVISION 2. Property PART 2. Real or Immovable Property TITLE 3. Rights and Obligations of Owners CHAPTER 2. Obligations of Owners

California Civil Code Section 846 (1995) "Duty of care or warning to persons entering property for recreation; Effect of permission to enter "

An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.

A "recreational purpose," as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby
(a) extend any assurance that the premises are safe for such purpose, or
(b) constitute the person to whom permission has been granted the legal status of an invitee or
licensee to whom a duty of care is owed, or
(c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.

This section does not limit the liability which otherwise exists
(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or
(b) (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or
(c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

Nothing in this section creates a duty of care or ground of liability for injury to person or property.

Livestock and the Federal Government
What USDA in California uses for the definition of "agricultural" is "animals for food or fiber". For horses used on a ranch, to work cattle, that falls into the definition of "agriculture." Other horses are considered "recreational." This designation has been arrived at for the purposes of the Farm Bill for USDA cost share program). The Resource Conservation Districts (RCDs) have been trying to get the USDA to loosen the definition for horses, so horse facilities are eligible for cost share funds, but to date have not been successful. (Personal communication with Lisa Shanks, Petaluma RCD, 2000).

In other states horses can be slaughtered for their meat, used for both human consumption and made into pet food. Horse products, particularly mane and tail hair, are available at tack stores and through catalogs. Because the horse is a small player on the field of food production agriculture, it has not been considered worthy of research investment through federal government grants.

Information provided by Scott Kennedy, SMCo Mounted Patrol (2001)

IRS: Chapter 6 - Horse Industry Issues

Introduction

Operations dealing with horses will encompass a variety of end results. Whether the operation is dealing with race, show, work, or special purpose horses will determine the level of investment and "polish" which is applied to the appearance of the operation. Without getting into specifics by breed, the following will recount the possible structure of the operations.

According to the U.S. Department of Commerce, International Trade
Administration, most U.S. horse meat is exported to Europe where it is especially popular in Belgium and France. Horses are covered under the Federal Meat Inspection Act and thus must be slaughtered under federal or state inspection. Any carcasses slaughtered for sale must be inspected. There are no quality or yield grades for horse meat. Horse meat is also used in some pet foods.

Although many Americans have an aversion to eating horsemeat, the horse meat industry is now rivaling the beef and pork industries in the amounts of fresh meat shipped abroad. In 1994, meat from 109,353 horses was shipped overseas. In Sweden horse meat outsells lamb and mutton combined. It is also commonly consumed in Spain, Italy, Switzerland, Germany, Austria, and the Netherlands, but it is most popular in Belgium and France. See the write-up for beef cattle for the general concepts of this type of operation.

Horses (equines) federally inspected:

1984: 130,825
1989: 342,877
1993: 184,320
1994: 109,353

Most horse operations will be breeding race, show, work or special purpose horses. Ancillary operations for training and boarding will also be included in this MSSP segment.

Training operations will take in horses and provide feed, boarding, and training appropriate to the purpose of the horse. Race horses, whether thoroughbreds, quarterhorses, walkers, trotters, or other types, will be provided appropriate training over a period of time. Show horses, likewise, receive extensive training and grooming. The trainers will charge fees for feed and board on a daily rate and charge out the training at flat rates, hourly rates, or may accept an interest in the horse as a fee. This type of fee requires determination of value for inclusion as income in the current year. The amount determined as income would become the basis of the interest. The horse owner would recognize the transfer of the interest as a sale and realize a gain or loss on the transfer as it relates to the basis of the horse. See F.C. McDougal et al. (1974) 62 TC 720 for this court decision.

A boarding facility will normally provide only feed, board, and general care. These services will be priced out on a daily basis with special charges for unusual care situations as they arise. The necessity of veterinary services would be an example of unusual situations.

Breeding work horses will entail many of the same aspects of other breeding operations without the high level of appearance. Emphasis on the work characteristics of the horses is common with purebred considerations downplayed. Working horses would be those used in other
operations for draft purposes or herding and rounding up other animals. Riding fences in rugged terrain to determine and execute repairs would be another function of work horses.

Special purpose horses would include those trained for rodeo, riding, hackney, or other such uses. Some overlap of other areas may be possible. The market for these horses is not extensive but lack of recordkeeping might result in tracking difficulties.

Race and show horses will likely be 100-percent registered purebreds with detailed tracking information available in the taxpayer's records and through the breed associations. The larger, more serious operations will limit activity to animals with known breeding lineage of successful animals to attempt to maximize potential. Seldom will a horse with an unproven lineage rise to the top of the sport. When this does occur, these animals will be highly documented to
ensure profitability from future breeding activities.

Expenses related to horse breeder operations will include purchases of animals, veterinary fees to keep the animals in the best health condition, facilities for boarding, feeding, and training, fees for breeding services (either stud or artificial insemination,) insurance coverage of the animals to compensate for losses due to injury or accident, advertising and promotion, and specialized feed materials.

Events, shows and races, involving the animals will require entry fees which are deducted as current expenses. A certain type of race, known as a "futurity", involves periodic payments of entry fees toward a future event. These payments are also deducted currently even though the animal may be unable to participate for any number of reasons.

Race horses have been subject to "syndication," the partitioning of ownership among, typically, up to 40 shareholders. The syndicated shares often contain breeding rights for the owners in addition to rights to profits. See IRC section 464 for the technical definition and application of rules for farming "syndicates."

Stud services are a common source of income for owners of recognized successful animals. The services may carry guarantees related to conception. A private treaty is a one-on-one breeding agreement which may have any type of special arrangement imaginable. No foal free return (NFFR) allows subsequent year attempt if no foal is conceived in current year. No foal no fee (NFNF) guarantees foal or no liability is incurred. Neither NFFR nor NFNF are common in the United States. The live foal guarantee likely carries a higher stud fee due to the additional financial risk to the stallion owner. If no live foal is produced, the mare may return for service or, possibly, another mare may be substituted. These guarantees may affect income.

Weaning foals takes place from 4 to 6 months of age. Colts, as young as 12-months, can impregnate mares. However, normal usage as a stallion will not take place until 2 years. The decision to castrate, geld, colts will often be made between 1 and 2 years of age, depending on the ability to keep the colt separate from mares. Training will begin early with temperament being the primary goal. Eventual addition of saddle and bridle will prepare the foal for being mounted by the age of two years when it has achieved the majority of its growth. A 3-year old should be in its prime and require only fine tuning training for further improvement.

Industry Facts

The horse industry is not standard in its marketing of animals. Horses are not generally sold in quantities like other animals. Individual sales are the norm and factors related to subjective characteristics of the horse greatly affect pricing.

Issues

IRC Section 1231
Transfer of an interest percentage in an animal in exchange for training or other services is considered a sale or exchange which results in the recognition of gain or loss for the fair market value of the interest transferred compared to the basis of the animal. See F.C. McDougal et al. (1974) 62 TC 720 for the related court decision.

Treas. Reg. section 1.1231-2(c)(1) provides that"* * *Whether a horse is held for racing purposes shall be determined in accordance with the following rules:

i.A horse which has actually been raced at a public race track shall, except in rare and unusual circumstances, be considered as held for racing purposes.
ii.A horse which has not been raced at a public track shall be considered as held for racing purposes if it has been trained to race and other facts and circumstances in the particular case
also indicate that the horse was held for this purpose.[accompanying clarification included]
iii.A horse which has neither been raced at a public track nor trained for racing shall not, except in rare and unusual circumstances, be considered as held for racing purposes."
[Examples follow in the regulations.]

IRC Section 61
Animals not fitting the requirements of the operation will be culled and sold. These sales may be through auctions or sale barns, but may be directly to buyers. Documentation may be less detailed on these sales than sales of high quality animals.

Syndication sales will normally involve significant amounts to be recognized. Stud services will be a recurring source of income in many instances.

IRC Section 168
Certain horses are 3-year property, including, IRC section 168(e)(3)(A)
i.any race horse which is more than 2 years old at the time it is placed in service,
ii.any horse other than a race horse which is more than 12 years old at the time it is place in service. Any other horse which qualifies for depreciation will be 7-year property. Within the horse industry, a horse is considered to have been born on January 1 of the year of birth for designation as a 1-year old, 2-year old, etc. Geldings cannot be placed in service in a breeding operation except in working or "teasing applications.

To The Reader
If you know of other citations that they think could be helpful to equestrians, please forward them to envirohorse@yahoo.com They will be incorporated into this document which will be kept as a work-in-progress and housed at www.californiastatehorsemen.com/envirohorse online with our other documents. Because the law is a living entity, they will change over time. We have put the year that we received them in parenthesis in each section. You should check original sources to make sure that they are still current at the time you need to reference them.

Disclaimer
These materials have been prepared by EnviroHorse for information purposes only and are not legal advice. Subscribers and online readers should not act upon this information without seeking professional counsel. Every attempt has been made to assure that the information contained in this publication is accurate. EnviroHorse assumes no responsibility and disclaims any liability for any injury or damage resulting from the use or effect of any product or information specified in this publication.

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