Yearning for wildness, slowly obliterating it

Placitas hillsideIn a recent opinion piece in the Santa Fe New Mexican, Toner Mitchell, New Mexico Public Lands Coordinator at Trout Unlimited, writes,

“It would be a sane and intelligent day if the money and resources expended on feral horses were instead used to restore the ecosystems they’ve destroyed…With feral horses, management to habitat’s benefit is practically impossible…”

Just the Facts: More about Placitas Horse Lawsuit

scales_of_justiceThis guest post comes to us from attorney Dave Reynolds, who represents the group of Placitas residents that joined WHOA v. NMLB as “Defendants by Intervention” (a third party with a stake in the outcome and right to be heard), and Carolyn Kennedy, who provided editorial assistance.

First, a little background. WHOA’s lawsuit in the New Mexico courts contends that NMLB has no right to treat Placitas “wild” horses as estray livestock when captured. In July 2014 the District Court ruled the free-roaming Placitas horses are indeed livestock and subject to estray livestock laws and dismissed the case. WHOA appealed the decision, and in August 2015 the Court of Appeals overturned the dismissal (it didn’t agree with the lower court’s reason for dismissal), and kicked the case back to District Court. (Sidebar: In October 2015, NMLB and the Intervenors asked the NM Supreme Court to review the Court of Appeals decision, but the Supreme Court said “not interested”). So, the case is proceeding in District Court and not over yet. However, the August 2015 Court of Appeals’ opinion does impact the status of Placitas horses right now. We’ll let Dave explain.

Summary of NM Court of Appeals Decision and Current Status of the Case, WHOA v. NM Livestock Board

Wild Horse Observers Association (WHOA) has recently published numerous blatant falsehoods about the ruling of the Court of Appeals in WHOA’s case against the NM Livestock Board (NMLB). This is a brief summary of what the Court of Appeals decided; what it did not decide; and the impact of the decision going forward with regard to free-roaming horses in the Placitas area.

By way of background, an appellate court does not, and can not, decide facts—fact finding is something that trial courts do through witness testimony and trial exhibits.  The Court of Appeals decides matters of law, such as interpreting what a statute means, and setting the legal framework for the trial court to apply law to the facts that have been proved to the trial court’s satisfaction. The New Mexico Court of Appeals did not make, and could not make, any determination as to whether the “Placitas horses” as a group, or as individuals, are “wild.” That question is up to a trial court to decide.

What the Court DID decide is that, under New Mexico law, not all horses are necessarily livestock, subject to the estray livestock impoundment procedure. The Court of Appeals ruled that if horses are proven, as a matter of fact based on evidence presented to a trial court, to be unowned and “undomesticated,” they are not livestock. Accordingly, the NMLB would have no jurisdiction over those particular horses, and would not be allowed to impound them for sale under the estray statutes.

The Court of Appeals did NOT rule that “the horses of Placitas are wildlife.” It did not rule that they are “protected wildlife.” It did not rule that “it is not legal to kill/auction NM’s wild horses.” With regard to animal cruelty laws, the Court ruled that while such laws apply to any horse in captivity, they do NOT apply to horses that are not in captivity.

While WHOA trumpets the Court of Appeals decision as a major victory, the legal consequences of the ruling are anything but a victory for free-roaming horses. By virtue of a 1994 New Mexico Attorney General Opinion regarding feral horses on White Sands Missile Range, which Opinion WHOA cited extensively in its Complaint in district court, the legal status of non-livestock horses is that of unregulated, unprotected wildlife, no different than coyotes or pack rats. Moreover, the Attorney General Opinion found that if such horses are captured on private land, they become the property of the landowner on whose land they were captured, and that landowner is free to sell them, keep them, and, yes, kill them. There is no opportunity, as there would be if the horses were found to be “domesticated” livestock subject to the statutory impoundment procedure, for individuals or rescue groups to purchase and adopt them at a livestock impoundment sale. In that regard, WHOA, in “winning” the legal argument that unowned horses are not livestock, actually gave landowners absolute power over unowned horses that they capture on their land. It doesn’t matter if the horses are “Spanish Mustangs”—if they are captured on private land, the landowner owns them.

WHOA did prevail against the livestock board in getting the Court of Appeals to find that the NMLB is the agency tasked by the DNA statute (Sec. 77-18-5 NMSA 1978) to test any non-livestock horses captured on the DNA statute’s narrowly defined “public lands.” However, this amounts to a big “so what?” in the Placitas area, because there is little, if any, “public” land in the Placitas area. Land that is under the control of the BLM, the forest service, and certain state trust land is excluded from the DNA statute’s definition of “public” land.  Even the City of Albuquerque’s Placitas Open Space is not “public” land, because as land the City acquired from the BLM under the Federal Recreational and Public Purposes Act, it remains under the ultimate control of the BLM. That leaves county road right of ways as the only “public” land in the Placitas area that is subject to the DNA statute. As a result, it is hard to conceive of a situation where horses captured anywhere in the Placitas area would have to be DNA tested by the NMLB.

It is important to note that the DNA statute does NOT apply to horses captured on private land, which is where all horse captures in the Placitas area have occurred. It doesn’t matter if they are unowned, undomesticated, free roaming Spanish Mustangs.  If they are captured on private land, they are the property of the landowner.

While the Intervenors and the NMLB asked the New Mexico Supreme Court to issue a writ of certiorari to review the decision of the Court of Appeals, it declined to do so, and, as a result, the Court of Appeals decision stands. The Supreme Court’s denial of certiorari does not make the Court of Appeals decision a Supreme Court decision. It simply means the Supreme Court was not convinced that this was a case of sufficient importance to take up time on the Court’s docket. As a decision of the Court of Appeals, it may be overturned by the Supreme Court at any time in the future.

It would seem that WHOA has won a pyrrhic victory in the Court of Appeals.  They succeeded in removing all legal protections for free-roaming horses captured on private land, and while now the NMLB must DNA test horses captured on “public” land, from a practical standpoint, no such land exists in the Placitas area.

In accordance with the mandate issued by the Court of Appeals after the Supreme Court declined review, the case has been sent back to the district court for further proceedings, if any, that the district court decides are appropriate, given the Court of Appeals ruling. The court may very well find that in light of that ruling, the case should now be dismissed as moot.


For more about WHOA v. NMLB, see these posts and articles:

7/19/2014: Court Dismisses WHOA Lawsuit

7/21/2014: Judge Rules Placitas Horses Not Wild (Albuquerque Journal)

7/22/2014: Placitas Horse Group May Appeal Judge’s Ruling (Albuquerque Journal)

10/2015. Court Ruling Reshapes Placitas Horse Captures (Sandoval Signpost)

9/6/2015: Appeals Court Creates New Type of Horse

9/7/2015: The New Horse Ruling and the Consequences of Not Being Livestock

10/22/2015: NM Supreme Court Declines to Take Up WHOA v. NMLB

3/18/2016: WHOA Special Edition Spreads Misinformation

“WHOA Special Edition” Spreads Misinformation

pinocchioMany Placitans received in the mail yesterday an 8-page newsletter, “WHOA Special Edition” from Wild Horse Observers Association. The banner headline on page 1 reads, “WHOA Wins vs NMLB in NM Supreme Court.” This is not true. Here are the facts.

WHOA’s Claim: “The New Mexico Supreme Court ruled 4 to 0 against the NMLB…”

The Facts: The WHOA v. NMLB case has not been heard by the NM Supreme Court. Petitions (called petitions for a writ of certiorari) were submitted to the Supreme Court last fall by the defendant (NM Livestock Board) and the 12 Placitas residents who are Defendants by Intervention asking that Court to review an earlier Court of Appeals ruling. The Supreme Court declined to hear the case. Turning a declined petition for a hearing into a 4-0 Supreme Court ruling in WHOA’s favor is a lovely fantasy for WHOA, but didn’t actually happen. As the Supreme Court docket is public information, anyone can verify that this case has never appeared on the Court’s docket.

The Facts: The WHOA v. NMLB suit is still in progress and the outcome pending. The Court of Appeals issued an opinion, overturned the District Court’s dismissal of the case, and sent the case back to District Court for further proceedings. The District Court must take into account the Court of Appeals ruling as it proceeds with the case. In fact, a hearing on the case was held in District Court just yesterday, a hearing attended by WHOA president Patience O’Dowd. So O’Dowd is fully aware the case is still wending its way through the lower court.

WHOA’s Claim: “Wild horses in NM are not livestock as contended by the New Mexico Livestock Board (NMLB). Hence they cannot be treated as trespass livestock on BLM lands.”

The Facts: There was no ruling by either the District Court or the Court of Appeals that the Placitas horses are “wild horses”. The Court of Appeals ruled that a Placitas horse that is proven to be “unowned and undomesticated” is not livestock and therefore is not subject to NMLB estray livestock procedures. It also ruled that NMLB is the appropriate agency to test the DNA of any horse that must have its DNA tested under NM state statute 77-18-5. That’s it. And the Court of Appeals ruling has absolutely no bearing on horses on BLM or other federal lands.

We won’t waste our time countering the rest of the misinformation presented by WHOA. When the case is settled, we’ll provide an accurate summary of the outcome on this blog.


Full disclosure:  The editors of this blog are among the 12 Placitas residents who joined the “WHOA v. NMLB” lawsuit as Defendants by Intervention in support of NMLB, private property rights and public safety.

Wildlife happenings on Santa Ana Pueblo

SunplusCheck out some great photos and videos of New Mexico wildlife on the new Facebook page of the Department of Natural Resources, Pueblo of Santa Ana. We especially like the video of those handsome pronghorn antelope hanging out by the wildlife pond and the wild turkeys cruising the brush near the golf course. The Pueblo conducted its annual aerial winter survey of big game last month.