Summary:
This appeal examines the protection afforded to New Mexico's free-roaming horses under NMSA 1978, Section 77-18-5 (2007). The New Mexico Livestock Board (the Board) appeals from a district court order granting declaratory and injunctive relief sought by Wild Horse Observers Association, Inc. (WHOA). WHOA brought an action for declaratory and injunctive relief against the Board and others regarding the status of horses corralled by a private citizen on private property. The citizen had initially complained to the Board about the free-roaming horses on her property and was told that the Board only takes possession of horses corralled by citizens. The citizen did so and the Board took possession of the herd, where it then posted on its website that the horses would be sold at auction. WHOA filed the instant emergency action, stating that the Board exceeded its authority and unlawfully treated the subject horses as estray livestock. The group sought a temporary restraining order (TRO) preventing the Board from impounding or selling the subject horses. The district court granted WHOA's request for a TRO, thereby prohibiting the Board from taking any action with the horses. After a bench trial on the merits, the district court determined that the Board's actions to take possession and sell the subject horses were contrary to the Board's statutory authority, enjoined the Board from “further unlawful possession and selling” of the subject horses, and awarded WHOA costs and attorney fees. The Board appeals here, arguing that the horses were captured on private, rather than public land, and the district court erred in concluding them to be “wild horses." The Board also contends that the district court made findings of fact that are unsupported by substantial evidence, issued a vague injunction, erred in awarding attorney fees, and erred in refusing to impose an injunction bond upon WHOA. This court found no error with the lower court concluding that the horses should be protected as “wild horses” because the definition of that term does not depend on whether, at the moment of their capture, the horses were on land that is private, but instead depends on whether the horses generally roam public land. Therefore, the horses were not estrays. As to whether the Board should have conducted its statutory duties with respect to horses including history and DNA testing, this court held that duty does not extend testing of a wild horse if it is captured on private land. Thus, the district court erred in determining that the Board failed to follow its statutory duties under Section 77-18-5(B). In fact, the Board has no authority to test the conformation, history, and DNA of such horses found on private land any more than it does to take possession of and remove the wild horses from those lands. The court also found the injunction was not vague or impracticable and that the lower court did not abuse its discretion in failing to order an injunction bond. Ultimately, this court affirmed the district court's order to the extent that it correctly determined that the subject horses are wild horse rather than estray, but reversed the district court's determination that the Board should have acted according to its statutory duties under Section 77-18-5. The case was remanded for proceedings consistent with this opinion and further consideration of attorney fees.