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 (WHOA v. NMLB) 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 free-roaming horses in the Placitas area) 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.
  • 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 certain inventoried herds on federal lands.) And as with other wild, non-game animals, it appears 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 remains legal. The only difference due to the new ruling is that if the captured horse turns out to be “unowned and undomesticated”, NMLB can’t help the property owner by taking the horse off his/her hands via the agency’s estray livestock procedures. The property owner has to assume ownership and responsibility for the horse.

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 Placitas Open Space (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 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 now be allowed on the BLM Buffalo Tract, either. Management of federal lands is not affected by this state court ruling.

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. 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.

__________________________________________________

*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.