Published In Ruidoso News,NM
By Dianne Stallings and Dave Tomlin / Ruidoso News, N.M. (TNS)
Published: Tuesday, August 30th, 2016 at 8:16am, Updated: Tuesday, August 30th, 2016 at 7:43pm
The Wild Horse Observers Association filed suit in 12th District Court Monday to force the New Mexico Livestock Board to treat a herd of unclaimed horses impounded last week near Alto as “wild horses” under state law.
The suit seeks “an order enjoining (the Livestock Board) from undertaking further activities that involve the impoundment, possession, removal, sale, or the disposition of wild horses as though the horses were estray livestock.”
The suit also asks the court to declare “that the horse herd in the Lincoln County area are wild horses under the laws of the state of New Mexico.”
Now that the Livestock Board seems to be moving toward returning the horses to Lincoln County next week, that request may be the lawsuit’s key remaining goal.
The complaint, filed late Monday by WHOA attorney Steven K. Sanders of Albuquerque notes that under New Mexico law, “a ‘wild horse’ is ‘an unclaimed horse on public land that is not an estray.’”
Attorney David G. Reynolds, who also practices equine law and represented landowners who intervened in an almost identical wild horse lawsuit two years ago in Placitas, said the wording of the statute meant that ownerless horses found on private land are not “wild horses.”
“If a horse on public land jumps over a fence onto private land, it’s not a wild horse anymore,” Reynolds said. “It is now a large packrat.”
Since the New Mexico Court of Appeals declared in the Placitas case that they are not livestock either, Reynolds said such horses on private land have no more protection under the law than skunks, raccoons or other intruders. Land owners can dispatch them on the spot if they want. The Alto herd was captured by a private landowner and turned over to the Livestock Board.
But Sanders disagreed.
“I don’t think the state can change its obligation by picking them up on one location rather than another,” Sanders said in a phone interview.
The lawsuit said that “the wild horses of Lincoln County roam throughout the area, on public and other non-BLM public land, such as on Village of Ruidoso parks and on other public lands that are not BLM or Forest Service land.”
The suit adds later that those areas “are bordered by private property, and where borders have not been fenced, the wild horses may also roam onto private property, when foraging for food and water.”
If the court finds that the Lincoln County herd are “wild horses” even though they were impounded on private land, the following provisions of state livestock law would apply:
A wild horse that is captured on public land shall have its conformation, history and (DNA) tested to determine if it is a Spanish colonial horse. If it is a Spanish colonial horse, the wild horse shall be relocated to a state or private wild horse preserve created and maintained for the purpose of protecting Spanish colonial horses. If it is not a Spanish colonial horse, it shall be returned to the public land, relocated to a public or private wild horse preserve or put up for adoption by the agency on whose land the wild horse was captured.
If the mammal division of the Museum of Southwestern Biology at the University of New Mexico determines that a wild horse herd exceeds the number of horses that is necessary for preserving the genetic stock of the herd and for preserving and maintaining the range, it may cause control of the wild horse population through the use of birth control and may cause excess horses to be:
(1) humanely captured and relocated to other public land or to a public or private wild horse preserve;
(2) adopted by a qualified person for private maintenance; or
(3) euthanized; provided that this option applies only to wild horses that are determined by a veterinarian to be crippled or otherwise unhealthy.
It remained to be seen how important the “captured on public land” language might be. The Court of Appeals ruling in the Placitas case expressly presumed the horses were captured on public land, although Reynolds said that was incorrect.
In any event, neither the law nor the binding court opinion expressly addresses the status of an unclaimed horse that may roam on public land but was captured on private property. The WHOA suit filed Monday may turn out to be an opportunity for a court to clarify that point.
The suit asserts that “the wild horses have become a staple of life for the people in Lincoln County, and a vast majority of residents support and prefer the presence of these wild horses living on the public lands as well as roaming private lands in their community.” That point too may draw some argument as it did from Reynolds’s clients in the Placitas case.
“Those horses destroyed all the Albuquerque public land in the Placitas area,” he said. “There were places where the horse poop is 18 inches deep. Those horses are nice to see from a distance, so pretty. But it’s a different story when you actually go out there.”