News analysis: Lawyers to debate what makes a wild horse wild

By Dave Tomlin / Ruidoso News, N.M. (TNS) as published in the Albuquerque Journal

“How does the Livestock Board distinguish this herd from the Placitas herd in the Court of Appeals case?”

photo courtesy of wildhorsesofalto.blogspot.com

photo courtesy of wildhorsesofalto.blogspot.com

As the lawyer for the New Mexico Livestock Board stood before him last week, District Judge Dan Bryant asked what is sure to be a key question if the lawsuit over the future of the wild horses of Alto goes to trial.

“How does the Livestock Board distinguish this herd from the Placitas herd in the Court of Appeals case?” Bryant asked Asst. Atty. Gen. Ari Biernoff.

The judge was referring to a case in which the appellate court ruled last year that the Board shouldn’t have treated a free-roaming herd of wild horses near Placitas as if they were “estray” livestock, just as they tried to do with the Alto herd.

To those who love Lincoln County’s free-roaming horses, the answer is self-evident. There’s no difference at all between the Alto horses and the Placitas horses, and the Livestock Board is wrong again.

The horse advocates may be exactly right. But that doesn’t mean lawyers won’t find plenty to argue about as they belabor what may look to equine-loving eyes like the obvious, if and when Bryant takes the bench to preside over Wild Horse Observers Association (WHOA) v. New Mexico Livestock Board.

Here are some of the legal and factual points a trial may raise:

1. The Court of Appeals opinion accepted WHOA’s claim that the Board “took the auctioned Placitas horses directly from public land before auctioning them.” But the Alto herd was penned up by a private landowner who summoned the Livestock Board to collect them.

We’ll discuss later why it might matter a lot where the Board picked up the horses. But one side, or maybe both, may argue that the Court of Appeals was misinformed about where the Placitas herd was picked up and by whom.

Corrales attorney David G. Reynolds, an attorney for one of the private landowners who intervened in the Placitas case on the Livestock Board’s side, told the News last month that the herd was actually captured on private property just like the Alto herd.

The point was never hashed out in court because 2nd District Court Judge Valerie Huling dismissed the case. The Court of Appeals sent it back to her for trial, but last week Huling dismissed it again because the Placitas horses are all gone and there’s no longer any herd to argue over. As lawyers say, the case is “moot.”

But since Bryant may have to decide whether the Court of Appeals ruling controls the outcome of the Alto case, he might hear arguments or evidence that the relevance of the appellate court opinion should be discounted because it was based on incorrect facts.

2. The New Mexico Livestock Code defines a wild horse as “an unclaimed horse on public land that is not an estray.”

The wording of this statute is the reason it might matter where the Board picks up any given group of unclaimed horses. The Court of Appeals ruling never says what an unclaimed horse on private land might be, because it presumed the Placitas herd was on public land as the statute appears to require.

Biernoff told Bryant last week that this is a “critical” difference between the Placitas and Alto cases. But even if the facts show that both herds were actually taken by the Board from private land, the Board may still argue that the Court of Appeals ruling doesn’t apply to the Alto herd.

Bryant could end up scratching his head over how much the extensive reasoning in the Court of Appeals decision depends on where the horses happened to be picked up.

He also may be asked to consider whether the legislature really intended to say that a wild horse suddenly stops being wild whenever it strays or is lured or led from public land onto private land.

Reynolds told the News a wild horse on public land turns instantly into “a large packrat” on private land in the eyes of the law. Since neither the statute nor the Court of Appeals ruling says anything about a free-roaming unclaimed horse on private land, he said, such a beast has no more legal standing or protection than a varmint.

But Albuquerque attorney Steven K. Sanders, who has represented WHOA in both cases, told the News last week before the hearing that this would be “a travesty” and could not have been what the legislature meant the law to say.

3.The Livestock Code says “public land” does not include federal land controlled by the Bureau of Land Management, the Forest Service or state trust land controlled by the state land office.

When you take all that away, plus all private property, an awful lot of Lincoln County is off the table as the kind of land on which a free-ranging horse can be considered legally wild, if the statute means exactly what it says.

Bryant ruminated aloud about that in court last Friday, even though nobody had asked him to. He seemed to conclude that in dealing with this case he will have to decide whether the Alto herd could have spent significant time on “public land” as the Livestock Code defines it.

It’s hard to say how important that will be to the case. But if Bryant was already thinking about it on his own in a preliminary hearing, a smart lawyer would probably have to consider it very important.

4. The only other definition in state law of a “wild horse” besides the one in the Livestock Code doesn’t seem to fit the Placitas and Alto herds.

The Court of Appeals opinion cited a New Mexico Administrative Code section that said a wild horse is a feral horse in an “untamed state having returned to a wild state from domestication.”

That doesn’t describe the wild horses in these cases, which everyone seems to agree have never been owned by anyone in their lives.

But it’s still possible the code section may come into play anyway. Read on.

5. State law defines livestock as “domestic or domesticated animals.” WHOA says that means the Placitas and Alto herds can’t be livestock. The Livestock Board begs to differ.

Biernoff indicated in last week’s hearing that the Board may try to portray the Alto herd as domesticated.

“We’ll have testimony about how this herd was living,” Biernoff told the judge. “We believe that the horses were being fed, having social interaction with people. We might need more evidence on this.”

Biernoff questioned some of Sanders’s witnesses about the Alto horses’ docile behavior. Then he called Caroline McCoy to the stand. McCoy is the property owner who penned up the 12 Alto mares and foals for the Livestock Board to take away. She described how she led them easily into an enclosure while riding her all-terrain vehicle.

Finally Biernoff called a Lincoln County rancher named Ashley Ivins to testify. His main goal with Ivins seemed to be to have her describe her familiarity with the kind of mustangs found on federal Bureau of Land Management ranges and how different they are from the Alto horses.

“They’re true wild horses,” Ivins said. “They’re mean and wild. They won’t eat out of your hand or be near people.”

So the definition of “domesticated” may be among the points Bryant will be asked to consider. And even if he agrees with the Board that the Alto horses have displayed domesticated behavior, he would have to weigh that against the fact that they’re also unclaimed and free-roaming.

Not many cases give a district judge the chance to address important gaps in the law left by both the state’s legislature and its second highest court. The novelty of the judicial opportunity could have been one reason Bryant put a stop to the Livestock Board’s attempt to auction the Alto herd.

But the judge was clearly troubled by the possibility that the Livestock Board is finding it easier to win wild horse cases on the auction block than in the courtroom, especially after the Placitas judge concluded that if the herd is gone, the case goes away too.

Bryant asked Biernoff during the hearing how a court could ever get a chance to review the Livestock Board’s actions and decide the legal issues surrounding New Mexico’s unclaimed, free-roaming horses if the Board were allowed to keep selling them off as soon as it gets its hands on them.

Biernoff uttered some words in reply to the judge’s question, but they didn’t contain a good answer. That’s because there probably isn’t any.

9 comments on “News analysis: Lawyers to debate what makes a wild horse wild

  1. Could it be that finally we have come up before a judge that actually looks at the truth of a case? What a novelty that would be. The fact that he questioned the Board’s selling off the wild horses before there was a decision certainly makes him sound like an honest man one who actually weighs both sides!

    Like

  2. It is important to keep in mind these horses were illegally baited onto private land and trapped and removed from there. Any horse born in the wild is by definition not claimed and not an estray. Following someone baiting them with feed doesn’t make a hungry animal domestic. Think of folks who feed wild birds, or chipmunks and deer etc., who are not then treated as domestic pets in the eyes of the law. Rather, those feeding them are generally violating laws.

    I also believe federal law trumps state law, and no state can randomly declare federal public lands are not public lands!

    “3.The Livestock Code says “public land” does not include federal land controlled by the Bureau of Land Management, the Forest Service or state trust land controlled by the state land office.”

    Like

    • Forgot to add the language in the Wild Horse and Burro Protection Act which clearly answers these questions:

      “wild free-roaming horses and burros” means all unbranded and unclaimed horses and burros on public lands of the United States;

      “public lands” means any lands administered by the Secretary of the Interior through the Bureau of Land Management or by the Secretary of Agriculture through the Forest Service.

      Like

      • BLM may not be correct to define wild horses since Mt States v Hodel found that: See http://ftp.resource.org/courts.gov/c/F2/799/799.F2d.1423.82-1485.html Case Law Mountain States v. Hodel
        ” In structure and purpose, the Wild Free-Roaming Horses and Burros Act is nothing more than a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife. At the outset, it is important to note that wild horses and burros are no less “wild” animals than are the grizzly bears that roam our national parks and forests. “

        Like

  3. This is WHY the Wild Horses & Burros Act was passed.

    CONGRESS FINDS AND DECLARES THAT WILD FREE-ROAMING HORSES AND BURROS ARE LIVING SYMBOLS OF THE HISTORIC AND PIONEER SPIRIT OF THE WEST; THAT THEY CONTRIBUTE TO THE DIVERSITY OF LIFE FORMS WITHIN THE NATION AND ENRICH THE LIVES OF THE AMERICAN PEOPLE; AND THAT THESE HORSES AND BURROS ARE FAST DISAPPEARING FROM THE AMERICAN SCENE.

    Wild Horses of New Mexico (Placitas) – Part 3
    http://www.shelleypaulson.com/2009/06/wild-horses-of-new-mexico-part-3/

    We had both been changed by this experience and by our time with the wild horses. They had let us capture a glimpse of them and learn what it means to be free and wild. We learned how horses commune, battle and live in the wild as they have for thousands of years. We also learned of their plight and how, one by one, they are losing their freedom to government bureaucracy.

    On the flight home, I started to read Lynne’s book. I really should have had a tissue, because the tears flowed again as I read the preface entitled “The Horse Changed My Life”. I knew that feeling. And deep down, I knew that what I had hoped to happen, had happened, I had not only been given the opportunity to take a lot of great photos, but my heart had been touched and changed .

    I have fallen in love anew, not just with the wild horses, but also with horses in general. I feel a greater sense of privilege to have a beautiful, trusting horse in my life. Every horse I meet now, I greet with affection, joy, kisses, and a kinder touch than before. I love horses unrestrained. The best part of that? I see the horses respond to me differently, they respond in kind, showing love and affection back to me.

    I have loved horses for as long as I can remember, and many have said to me about this experience that “it was the opportunity of a lifetime” and, while it feels a lot like that, I sincerely hope to see and photograph the wild horses again in the not so distant future. However, this experience will always hold a deep, special place in my heart the way a first love does.

    Like

    • keeping up with new scientific peer review finds may better serve the purpose that all horses were wild until domesticated 5000 years ago, and revert to their wild state See Case Law Mountain States v. Hodel http://ftp.resource.org/courts.gov/c/F2/799/799.F2d.1423.82-1485.html
      ” In structure and purpose, the Wild Free-Roaming Horses and Burros Act is nothing more than a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife. At the outset, it is important to note that wild horses and burros are no less “wild” animals than are the grizzly bears that roam our national parks and forests. “

      Like

      • Yet – the BLM & others continue to label the WH&B as “feral” animals! Boy do they need educating – as always.

        Like

Care to make a comment?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s