Judge orders Livestock Board to stop wild horse auction

Dave Tomlin, Ruidoso News 9:40 a.m. MDT September 9, 2016

Advocates for the return of a dozen free-range horses to Lincoln County have won their fight to stop the New Mexico Livestock Board from selling the herd while they pursue their legal effort to return it permanently to the Alto area where it was seized last month.
At a hearing in Carrizozo Thursday, 12th District Judge Dan Bryant granted a temporary restraining order that bars the Livestock Board from taking any action to sell or divide the herd while the case goes forward.
In fact, Bryant gave the plaintiff Wild Horse Observers Association and the more than 100 people who turned out to show support for bringing the horses back a good deal more to cheer about, although the judge cautioned them in advance not to do any actual cheering in his courtroom.
Bryant invited the Livestock Board to consider returning the horses immediately to Lincoln County into the custody of anyone willing to provide space and care for them and also to sign a certificate agreeing to comply with any future orders the judge issues in the case.
And he sent a strong signal that WHOA has a strong shot at eventually persuading him that the Alto herd should be designated “wild horses” under state law and that the Livestock Board was wrong to take custody of them and put them up for sale in the first place.
“I have heard substantial evidence that this band may be ‘wild horses’ as the legislature intended to define them in the statute,” Bryant said. “And I have heard substantial evidence that the Livestock Board may have violated the law.”
The judge referred several times during the nearly four-hour hearing and in his ruling to a New Mexico Court of Appeals decision last year which held that a similar group of unowned horses in Placitas were wild horses, not “estray” livestock as the Livestock Board had claimed.
Bryant was careful to emphasize that his ruling doesn’t mean that WHOA is sure to win its case. But in order to grant a restraining order against the Livestock Board, the judge was implicitly finding a “substantial likelihood” that WHOA would succeed in proving its case on the merits.
He was also finding that “irreparable harm” would result if the temporary order were not granted, and Bryant said he was persuaded that such harm would occur if he failed to act.
“There would be irreparable harm in hurting the herd and its relationship to the community” if the Livestock Board were allowed to break up the group on the auction block as it was preparing to do.
Board executive director William Bunce said in an email to the News Thursday afternoon that no bids had yet been received but bids would remain open until Monday unless the court stopped the sale.
“If the bidding continues it will be for five mare/colt or filly pairs, and two individuals,” he said. If the sale is stopped by court order, he added, the horses would remain at a Livestock Board holding facility in Santa Fe.
But Bryant encouraged the Board and WHOA supporters to work out a better arrangement.
Assistant Atty. Gen. Ari Biernoff had argued that the Board would be burdened by the expense of caring for the horses if the judge ordered a stop to the sale. Bryant said the Board could spare itself that expense by allowing a private Lincoln County resident with adequate enclosed space and facilities to keep the herd together and take care of them.
The proposed arrangement sounded a lot like the “gentleman’s agreement” that horse advocates thought they had reached with Bunce last month but which the Livestock Board later said it would not implement. But under the impetus of the court’s ruling, it seemed possible the Board might change its mind again.
Bryant’s ruling capped a long afternoon of sometimes emotional testimony from horse advocates and also from Caroline McCoy, the Alto property owner who penned up the 12 horses on Aug. 25 and summoned the Livestock Board to take them away.
“I had no idea that people thought of these horses as free pets,” she said. “It was a big surprise.”
McCoy, who owns two horses and rides regularly, added that she could understand the feelings in the community for the herd. But she said she doubted a free pack of feral dogs would generate the same kind of support.
“I don’t think it’s a good idea to have horses running loose in a residential area,” McCoy said. She testified she thought horse lovers would applaud the efforts she said she made to insure that the Livestock Board found new homes for the horses and did not sell them for slaughter.
Instead, McCoy said she had received scores of threats. She said festoons of toilet paper and dead skunks had been left on the property of a neighbor whose address had been mistaken for McCoy’s.
“Yes there were all kinds of threats, everything from ‘kill her’ to ‘shoot her,’” McCoy testified. “Now when I go out riding I worry about who’s hiding in the bushes, who’s going to shoot me down.”
Bryant said later after announcing his decision that he was “deeply grieved by the acrimony” McCoy described. “As a community we should discourage any of these kinds of behavior,” he said.
During the hearing, WHOA attorney Steven K. Sanders called a succession of witnesses to the stand and asked them to describe the pleasure derived from the presence of the horses by residents and visitors and the emotional and commercial harm their removal is causing.
Some paused to wipe away tears as they spoke about the harm to the community and the horses themselves from the Board’s action.
Among them was Andree Germany of Capitan, who described herself as an animal caretaker and testified that she had seen firsthand the emotional trauma to the stallion caused by the removal of his mares and foals.
“He runs every day up and down looking for his family,” Germany said.
Another witness, Shelley McAlister, testified that she had been preparing last week to receive the 12 horses from the Livestock Board under the agreement the horse advocates thought they had with the Board to return the herd to Lincoln County while the legal case proceeded.
McAlister said she owns 16 horses of her own and has 10 acres on her property along Ft. Stanton Road that can be set aside as a safe temporary place for the herd to stay. She indicated in the courtroom that the offer remains open.
“Our ultimate goal is to be able to have them free,” she said, “roaming Alto as they have done for many many years.”
Biernoff told the judge that just turning the horses loose would only produce “more conflict, more problems, more calls to the Board.” But he indicated that the Livestock Board might entertain a proposal from a Lincoln County landowner to take temporary custody of the herd.
After Bryant had ruled, Biernoff and Livestock Board general counsel Allison Hedgecock conferred briefly and came up with some concerns about handing the herd over to a private custodian.
They asked the judge if the Board could pick a landowner for the job. The judge said the Board could make the choice as long as the herd is kept together.
They asked who would be the legal custodian for the herd in such an arrangement and bear the risk of any harm caused while the herd was in private hands. The judge said that question could be dealt with in the negotiated custody agreement.
Sanders said he believed WHOA should have a voice in selection of the host for the herd and the terms on which the horses would be handed over and cared for. Bryant agreed that it should.