NM Supreme Court Declines to Take Up WHOA vs NMLB

scales_of_justiceLast week, the New Mexico Supreme Court declined to hear the Wild Horse Observers Association (WHOA) vs. New Mexico Livestock Board (NMLB) case concerning free-roaming horses in Placitas. The state Supreme Court receives dozens of petitions a year and can only take on so many cases, so they choose the most interesting or pressing ones. Placitas horse issues didn’t make the cut.

A District Court judge had dismissed the case back in July 2014 because she didn’t think WHOA’s primary argument — that Placitas free-roaming horses aren’t livestock and shouldn’t be treated as such by NMLB — held water. WHOA appealed the decision. In August, the Court of Appeals weighed in, disagreed with the District Court’s dismissal of the case on the particular grounds that it cited, and sent the case back to District Court.

But first, the NMLB petitioned the Supreme Court in September to review the Court of Appeals ruling. So did the group of Placitas residents that has joined NMLB as defendants in the case.*

Since the Supreme Court isn’t interested in the case, it now goes back to District Court for further proceedings. The judge will look further at the several arguments presented by both sides and ultimately issue a new ruling. This will all take awhile. We’ll keep you posted.


*Disclosure: The editors of this blog, together with other Placitas residents, joined the lawsuit as “defendants by intervention” in support of NMLB and private property rights.

What a little cooperation can do

Dog cat shaking handsWonders never cease. Last Monday, Placitas Wild, a local group that advocates for keeping free-roaming horses on the land, backed up a horse trailer to a temporary corral on Susan Blumenthal’s Placitas property and loaded up four horses it had purchased from her two weeks earlier. The transaction was a refreshing display of how civil, thinking grown-ups can solve thorny free-roaming horse issues without resorting to name-calling, vandalism and fisticuffs.

The horses had been frequent visitors to Blumenthal’s property, where they trampled riparian areas, overgrazed sparse native grasses, and damaged an archeological conservancy area. Tired of seeing her habitat restoration efforts stomped into oblivion, Blumenthal set up a portable pen. When the horses wandered in for a snack, she shut the gate. With that, she became the proud owner of four previously free-roaming horses, thanks to the surprising ruling by the NM Court of Appeals in August.

Stallions dining

Photo courtesy of Zane Dohner.

Helping hands

Although Blumenthal didn’t want the horses free to continue damaging the Las Huertas Creek basin, she did want to find a good home for them. The NM Livestock Board, which had verified the horses’ unowned status and documented that they now belonged to Blumenthal, offered to help by notifying Placitas Wild of the situation. Placitas Wild, which recently established a horse sanctuary on San Felipe Pueblo, agreed to buy the horses from Blumenthal for $1 each.

Horses in Blumenthal corral

Horses in the Blumenthal corral. Photo courtesy of Zane Dohner.

While arrangements with Placitas Wild were being finalized, Blumenthal continued to care for the horses. She was helped by several Placitas residents (including this blog’s editors) who have been working to protect public and private lands in Placitas from environmental damage caused by free-roaming horses. We ensured the horses were well-fed and the corral kept clean for some weeks. (We so-called “horse haters” also made donations to Placitas Wild to help cover the upcoming expense of gelding the stallions). In spite of differing views about whether free-roaming horses belong on the land, everyone was interested in the welfare of the horses and worked together to ensure a good outcome. The NMLB did what they could to assist while taking pains to comply with the confusing dictates of the recent court ruling.

Imagine! No fist fights. No vandalism of property. No laying down in front of trucks, no chasing of vehicles, and nary a rock thrown. Between Blumenthal, the group of local residents, attorney Dave Reynolds, the Placitas Wild folks, NMLB, and the Sandoval County Sheriff’s Office (which patiently explained to WHOA president Patience O’Dowd that yes, Blumenthal’s actions were entirely legal), everyone worked together to ensure the horse’s welfare and a civil transaction.

Oh, the irony

WHOA thought its appellate court victory would mean carte blanche for free-roaming horses on private land, but the opposite is true. By granting WHOA’s wish to have “unowned and undomesticated” horses no longer considered livestock, the court gave property owners more say over the disposal of horses they capture. In this case, that served to effectively sideline WHOA and Placitas Animal Rescue and keep their histrionics out of the picture. Instead, reasonable adults were able to quickly reach an agreement that worked for all parties — two-legged and four-legged.

The New Horse Ruling and the Consequences of Not Being Livestock

scales_of_justiceAs mentioned in our first post yesterday, in August the New Mexico Court of Appeals overturned a decision of the New Mexico Second District Court.

By way of background, in February 2014, Wild Horse Observer’s Association (WHOA) filed a lawsuit claiming Placitas free-roaming horses are “wild” and it is unlawful for the New Mexico Livestock Board (NMLB) to treat them as livestock.* The District Court didn’t buy WHOA’s arguments and ruled in July 2014 that all horses are livestock and the Placitas horses are covered by NM livestock statutes.

WHOA appealed the decision. The Court of Appeals, which trumps the lower court, said in its August 2015 ruling that not all horses qualify as livestock, and that horses that are “unowned and undomesticated” are not livestock.

Remember that phrase. It’s a brand new category of horse, with no legal precedent in New Mexico or any other state. The new ruling appears to conflict with several points of established law, so it will be interesting to see how it all shakes out.

WHOA claims the ruling is a victory for them. We’re not so sure.

This is how we see things as a result of the ruling:

  • Unowned, undomesticated horses (this includes most Placitas free-roaming horses) are no longer considered “livestock”. They are not covered by livestock statutes and have lost certain protections. The Livestock Board is no longer responsible for them if they are captured, doesn’t have to post public notices about them, and isn’t required to find a home or sell them at public auction. Whether this is good or bad for the horses remains to be seen.
  • It appears that unowned, undomesticated horses in New Mexico are now considered wild animals. (Note that they are not “wild horses” as defined in the federal Wild Free-Roaming Horses and Burros Act of 1971, which only concerns wild horse herds on federal lands.) And as with other wild, non-game animals, a landowner has the legal authority to capture and control them, as long as any relevant state statutes are followed (see, for example, NM Attorney General’s Opinion 94-06 regarding the wild horses of White Sands Missile Range).
  • So, the ruling does not change the fact that property owners can legally corral a trespassing horse—owned or unowned, wild or tame–on their own property. This action has always been legal and remains legal. The only difference due to the new ruling is that now NMLB can’t help you afterwards if the captured horse turns out to be “unowned and undomesticated”. For the time being, NMLB can only help you with owned horses, which remain “livestock”.

And by the way…

  • A state statute (the so-called “wild horse” statute, 77-18-5 NMSA) requires DNA testing of any unclaimed horse captured on certain public lands in New Mexico. If the test shows the horse is of Spanish Colonial descent, certain procedures have to be followed. However, it doesn’t appear there are any lands in Placitas that meet the statute’s narrow definition of public lands. Arguably, the POS might meet the definition, but technically the POS is under the ultimate control of BLM, a federal agency, which isn’t subject to the state statute. The POS is fenced and off limits to free-roaming horses, anyway, so it’s a moot point. The wild horse statute, with its DNA testing and other requirements, does not apply to horses captured on private land, and the Court of Appeals ruling does not change this.
  • The ruling does not mean free-roaming horses are now allowed on the Placitas Open Space. The Placitas Open Space (POS) is a fenced, protected recreational area managed by the City of Albuquerque under the federal Recreational and Public Purposes Act. Free-roaming horses of any sort are not permitted on the POS and the ruling doesn’t change that.
  • The ruling does not mean free-roaming horses must be allowed on the BLM Buffalo Tract, either. BLM land is federal land and BLM is not subject to state laws regarding horses.

The intent of WHOA’s lawsuit was to stop NMLB from treating Placitas free-roaming horses as estray livestock. WHOA was successful in that regard. That means a property owner can no longer count on NMLB’s help in finding a home for or auctioning an unowned, undomesticated horse that they have penned and want removed from their land.

Instead, as a result of the court ruling, the property owner can assume ownership of the horse, along with the legal right to keep or sell it. However, anyone who pens a horse on their property must still immediately contact NMLB so the horse’s legal status can be appropriately documented.

Thanks to WHOA’s misguided legal efforts, it looks like it’s the Wild West again.


*Full disclosure: The editors of this blog, together with other Placitas residents, were parties to the lawsuit, joining as “defendants by intervention” in support of NMLB.

Disclaimer: We try to exercise due diligence in ensuring information on this blog is accurate. As part of that process, this post was reviewed by an attorney experienced in livestock law. We’re not lawyers and the information provided on this blog should not be construed as legal advice. If you have questions concerning livestock or free-roaming horses, contact the NM Livestock Board and/or consult a qualified attorney.

This posted updated 11/19/15.

Be Careful What You Wish For

GavelSome free-roaming horse advocates in Placitas are upset right now because they’ve just realized the very real effect of their victory in the NM Court of Appeals (see earlier post).

Last Tuesday, a Placitas property owner penned a band of four horses that had been regularly coming onto her property and creating havoc. She called NMLB, which sent an inspector out to officially document that the horses were “unowned and undomesticated” (that’s the odd new category of horses the Court ruling created as a result of WHOA’s lawsuit). The horses were microchipped for future identification purposes, and—courtesy of WHOA’s court victory– the horses now belong to her. She is free to keep or sell them as she sees fit.

In the past, the horses would have had to be publically noticed and auctioned by NMLB, giving free-roaming horse advocates an opportunity to buy the horses, but no longer.

Didn’t WHOA know this would be the result of its poorly thought-out lawsuit? Based on a frantic 911 call placed by WHOA president Patience O’Dowd to report the property owner’s actions and a rambling email sent to Gov. Martinez, the Attorney General, the Mayor of Albuquerque, the Sandoval County Sheriff, and others, O’Dowd apparently thought that, as a result of the new ruling, horses roaming on private land would now be untouchable. It appears O’Dowd doesn’t understand either the limits of the court’s ruling or the unintended consequences of her own lawsuit. We’ll have a post up tomorrow that looks more closely at the Court’s ruling.

Appeals Court Creates New Type of Horse

scales_of_justiceThings have gotten interesting on the Placitas horse front. In a previous post, we covered the New Mexico Second District Court’s July 2014 decision in the case of Wild Horse Observers Association (WHOA) versus the New Mexico Livestock Board (NMLB).* In that ruling, the Court said that the free-roaming horses in Placitas are “livestock” like any other horses and subject to existing state laws regarding estray livestock.

Under the livestock code, property owners who pen trespassing livestock are required to notify the NMLB and use its estray livestock procedures. That agency posts public notices about any estray livestock found, and if the animal is unclaimed, may sell it at public auction.

But that was then, and this is now. In August, The New Mexico Court of Appeals overturned the District Court ruling. It ruled that if a free-roaming horse in Placitas is proved to be “unowned and undomesticated,” that horse would not be considered “livestock”, but would be an “unowned and undomesticated” horse. That’s a brand new, never-before-seen category of critter, legally speaking. By removing their status as livestock, any free-roaming horses in Placitas that are “unowned and undomesticated” (except those on certain public lands) now have the same legal status as jack rabbits and coyotes.

As a result of the Court of Appeals ruling, someone who pens one of these non-livestock, unowned, undomesticated horses on their private property now becomes the owner of the horse as soon as it is captured, under the common law doctrine of property, ratione soli (but does need to notify NMLB and get proper documents). Since the horse is not livestock, NMLB does not, and cannot, post a public notice, take responsibility for the horse, or auction it publically. That makes life easier for NMLB, but a little harder for the property owner, who no longer has NMLB to help them out. He or she has to take full responsibility for their new horse, either keeping and caring for it or selling or giving it away.

It’s entirely possible the ruling will make it easier for so-called “kill buyers” (people who buy horses in order to sell them for slaughter) to get their hands on horses, so we don’t think WHOA has done the horses any favors with this ruling. In another post, we’ll look more closely at what the new ruling does and doesn’t mean.


*Disclosure: The editors of this blog, together with other Placitas residents, were parties to the lawsuit, joining as intervenors in support of NMLB.

Disclaimer: We’re not lawyers and the information provided on this blog should not be construed as legal advice. If you have questions concerning livestock or free-roaming horses, contact the NM Livestock Board and/or consult a qualified attorney.

Conservation District Incumbents Win Big

ElectionYesterday’s contested races for three positions on the Coronado Soil and Water Conservation District Board turned out to be not just a landslide, but a blow-out. Incumbents Alfred Baca, Patricia Bolton and Marvin Mendelow won 78%, 85% and 81% of the vote, respectively, according to the unofficial count. Wild Horse Observers Association President Patience O’Dowd, who challenged incumbent Bolton, garnered the fewest votes of any candidate. Although we expected only about 150 voters to turn out, the actual number was about 70% higher (257).

It’s great to see that common sense prevailed, and incumbent supervisors committed to addressing the many conservation needs in the District were shown overwhelming support by the broader community.

Unofficial results:

Position 1:

Patricia Bolton       214 (84.6%)
Patience O’Dowd     39 (15.4%)

Position 2:

Marvin Mendelow     205 (81.0%)
Renee Sposato          48 (19.0%)

Position 5:

Alfred Baca             200 (77.8%)
Jami D. Watson        57 (22.2%)

Polls close in 3 hours– Get out and vote for conservation!

Be sure to take a few minutes to vote before 7 pm today in the Coronado Soil and Water Conservation District election. We encourage votes for Baca, Bolton and Mendelow. You can learn more about these three candidates here and read about the election in this Sandoval Signpost article. With such a low-turnout election, every vote matters. Make your voice heard in support of District-wide soil and water conservation efforts. There’s easy parking and no lines at the polling station: Our Lady of Sorrows Gymnasium, 301 S. Camino del Pueblo, Bernalillo. Polls open until 7 pm.