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

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.