HOUSE BILL 445
54th legislature - STATE OF NEW MEXICO - first session, 2019
INTRODUCED BY
Joanne J. Ferrary
AN ACT
RELATING TO WILD HORSES; ENACTING THE WILD HORSE PROTECTION AND HABITAT ACT; CREATING THE NEW MEXICO EQUINE BOARD; PROVIDING POWERS AND DUTIES; CREATING A FUND; PROHIBITING CERTAIN ACTS; ESTABLISHING CRIMINAL PENALTIES; REQUIRING PROPERTY OWNERS TO FENCE OUT WILD HORSES; REMOVING WILD HORSES FROM THE DEFINITION OF "LIVESTOCK"; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 13 of this act may be cited as the "Wild Horse Protection and Habitat Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Wild Horse Protection and Habitat Act:
A. "board" means the New Mexico equine board;
B. "director" means the director of the board;
C. "dumped" means abandonment of an animal by the person who has custody or control of the animal;
D. "fund" means the wild horse protection and habitat fund;
E. "public land" means land controlled or supervised by an agency of the state government or its political subdivisions but does not mean state trust land controlled by the state land office;
F. "range" means the amount of land necessary to sustain a herd of wild horses, which range does not exceed its known territorial limits; and
G. "wild horse" means an unclaimed and unbranded horse that is not an estray.
SECTION 3. [NEW MATERIAL] NEW MEXICO EQUINE BOARD--CREATED--COMPOSITION--QUALIFICATIONS--TERMS--MEETINGS.--
A. The "New Mexico equine board" is created to manage the wild horses of the state. The board is administratively attached to the energy, minerals and natural resources department.
B. The board shall be composed of nine members appointed by the governor. The members shall be knowledgeable specifically with regard to wild horses and shall not have interests that conflict with the interests of wild horses. The board shall be nonpartisan, with no more than four members being members of the same political party, and wild horse knowledge among the members shall be prioritized.
C. The term of office of each member of the board shall be six years; provided that of the members of the board to be appointed after the enactment of the Wild Horse Protection and Habitat Act, two shall be appointed for a term of two years, two for a term of four years and three for a term of six years and, upon the expiration of the terms of the appointments, the successors shall be appointed for a full term of six years.
D. A member shall hold office until the member's successor is appointed and qualified. A member appointed to fill a vacancy shall serve for remainder of the term for which the member was appointed.
E. The board shall elect from its members a chair, vice chair and secretary.
F. The board shall hold two regular meetings each year, one in June and the other in December. Special meetings may be called by the chair, by the vice chair in the event that the chair is absent from the state or because the chair is physically incapacitated or by a majority of the members of the board.
G. The members of the board are entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.
SECTION 4. [NEW MATERIAL] NEW MEXICO EQUINE BOARD-- DUTIES.--The board shall:
A. exercise general regulatory supervision over the wild horses of this state to protect them from theft, overpopulation and disease;
B. promulgate humane handling, loading, hauling and on-range movement rules for wild horses;
C. every two years, conduct a census of each wild horse herd in the state and develop best practices for conducting a census of wild horse populations;
D. proactively perform range improvement treatments in coordination with the New Mexico state university range improvement task force, the cooperative extension service or soil and water conservation districts;
E. proactively manage wild horse herds;
F. create educational materials, including wild horse safety educational materials, and develop programs to educate the public about wild horses;
G. create wild horse tourism maps for sale and equine tourism brochures for distribution to the tourism department;
H. develop a cooperative fencing program to provide assistance with the building of fences in cases of economic hardship;
I. develop a process and procedure for determining the status of an equine as wild or dumped and work with the New Mexico livestock board to end horse dumping;
J. work with agencies serving veterans to develop and promote opportunities for employment and volunteering involving wild horses;
K. secure funding grants and work in conjunction with the tourism department to develop revenue streams for wild horse management in the state;
L. work with the department of transportation and county highway departments on safety improvement projects in areas where wild horses are present;
M. work with county animal control departments where wild horses are present;
N. work with the department of game and fish, as needed, on range and population management;
O. coordinate with the New Mexico livestock board on disease control;
P. work with fire marshals to develop or capitalize on fire reduction due to wild horse grazing;
Q. work in conjunction with the economic development department to develop rural jobs relating to wild horses; and
R. as needed, work and coordinate with state, federal or tribal entities to carry out the Wild Horse Protection and Habitat Act.
SECTION 5. [NEW MATERIAL] NEW MEXICO EQUINE BOARD--POWERS.--The board may:
A. appoint and fix the salary of a director who shall file an oath and be bonded in an amount fixed by the board. The director shall manage the affairs of the board under the direction of the board. The director shall be chosen solely on qualifications and fitness for the office;
B. employ two wild horse specialists, equine inspectors and other personnel necessary to assist the board in carrying out its duties pursuant to the Wild Horse Protection and Habitat Act. Equine inspectors shall have the same powers as any other peace officer in the enforcement of the Wild Horse Protection and Habitat Act;
C. employ an equine veterinarian with wild equine and equine genetic expertise to assist the board in carrying out the Wild Horse Protection and Habitat Act;
D. provide office space and purchase equipment, including drones, horse trailers, trucks, wildlife cameras, mobile panels, contraceptives or darts and dart guns for census, fence building, wild horse inspections, investigations and population and habitat management;
E. establish wild equine districts within the state to facilitate the implementation of the Wild Horse Protection and Habitat Act and address unique issues with wild horse management that may exist within particular areas of the state;
F. enter into contracts for research into habitat and range improvement and management;
G. set fees or charges, not to exceed one hundred dollars ($100) per instance, for any services rendered by the board or its employees that are deemed necessary by the board and for which no fee has been set by statute;
H. hold hearings and subpoena witnesses for the purpose of investigating or enforcing the Wild Horse Protection and Habitat Act or rules established pursuant to that act;
I. enter into joint powers agreements with Indian nations, tribes or pueblos to carry out the provisions of the Wild Horse Protection and Habitat Act;
J. use the office of the attorney general or hire an attorney to give advice and counsel in regard to any matter connected with the duties of the board, to represent the board in any legal proceedings and to aid in the enforcement of the laws related to wild horses. The office of the attorney general shall not charge the board for legal services; and
K. adopt and promulgate rules to carry out the purposes of the Wild Horse Protection and Habitat Act.
SECTION 6. [NEW MATERIAL] HERD MANAGEMENT.--
A. If the board determines that a wild horse herd is nearing or exceeds the number of horses that is necessary for preserving the genetic stock of the herd and for preserving and maintaining the range, it may proactively cause control of the wild horse population through the use of birth control and may as a last resort cause excess horses to be:
(1) humanely captured and relocated to other public land or to a public or private wild horse preserve;
(2) adopted by a qualified person for private maintenance subject to an adoption contract that does not allow the horse to be used for human consumption and requires the person to care for the horse for the entirety of the horse's life; or
(3) euthanized; provided that this option applies only to wild horses that are determined by an equine veterinarian to be crippled or otherwise unhealthy.
B. A wild horse that is captured under the authority of the board shall have its conformation, history and deoxyribonucleic acid tested for the purpose of genetic viability and tourism data and it shall be returned to the general area it was captured, relocated to a public wild horse preserve or put up for adoption by the board.
SECTION 7. [NEW MATERIAL] FEES.--
A. Fees for services, not to exceed one hundred dollars ($100) per instance, shall be fixed by the board for services rendered pursuant to the provisions of the Wild Horse Protection and Habitat Act, including:
(1) a fee for fencing, not to exceed the actual costs of materials and installation;
(2) a fee for training wild horses, if the wild horses are to be adopted;
(3) a fee to provide training to other agencies and the public;
(4) a wild horse adoption fee;
(5) a fee for range improvement and management, including re-seeding properties with native grasses, weed control using goats or nontoxic applications or other improvement techniques;
(6) a fee for the sale of equine tourism maps; and
(7) fees for other services provided to the public in the discretion of the board.
B. All fees and charges collected pursuant to the provisions of the Wild Horse Protection and Habitat Act shall be paid to the director of the board to be deposited in the fund.
C. Revenue derived from the sale of equine tourism maps shall be deposited in the fund and used for wild horse population management.
SECTION 8. [NEW MATERIAL] WILD HORSE PROTECTION AND HABITAT FUND--CREATED.--The "wild horse protection and habitat fund" is created in the state treasury. The fund consists of appropriations, gifts, grants, donations, fees and other revenue collected pursuant to the Wild Horse Protection and Habitat Act. Money in the fund at the end of a fiscal year shall not revert to any other fund. The board shall administer the fund, and money in the fund is appropriated to the board to carry out the Wild Horse Protection and Habitat Act. Disbursements from the fund shall be made by warrant of the secretary of finance and administration pursuant to vouchers signed by the director or the director's authorized representative.
SECTION 9. [NEW MATERIAL] NEW MEXICO EQUINE BOARD--REPORTS--RECORDS.--
A. During the first week in December each year, the board shall transmit to the secretary of energy, minerals and natural resources a report of its activities for the previous calendar year. The report shall contain a detailed account of all of the receipts and expenditures of money by the board, together with other facts relating to wild horses in New Mexico that may be of public interest. The report shall be transmitted by the secretary to the governor and the legislature.
B. The board shall maintain a record of all wild horse herds to facilitate herd management as well as tourism, where allowable, and the reports of its veterinarians and inspectors.
C. Records required to be kept by the director, including inspector reports, shall be maintained by the board in a readily available manner, and a certified copy of a record maintained by the director or the verified oath of an inspector shall be prima facie evidence in all courts of this state of the truth of any fact stated in the record.
SECTION 10. [NEW MATERIAL] PROSECUTION--AUTHORITY OF THE BOARD AND INSPECTORS.--
A. The board shall assist in the prosecution of persons charged with the violation of laws involving or impacting wild horses and may call upon a peace officer to execute its orders, and when it does, the peace officer shall obey the order of the board.
B. Wild horse inspectors may arrest persons found in the act or whom they have probable cause to believe to be guilty of driving, holding or slaughtering wild horses or of violating any laws related to wild horses.
SECTION 11. [NEW MATERIAL] PROHIBITED ACTS--FREE ROAMING HORSES.--An owner of an equine shall not allow an equine to graze or roam unattended outside of fenced private property.
SECTION 12. [NEW MATERIAL] PROHIBITED ACTS--DRIVING, HOLDING OR KILLING WILD HORSES.--It is unlawful for a person, without legal justification, to drive, hold or kill a wild horse, or to otherwise remove, or entice a wild horse to move, from the wild horse's natural habitat.
SECTION 13. [NEW MATERIAL] CRIMINAL PENALTY.--A person who violates the Wild Horse Protection and Habitat Act or a rule adopted by the board for the protection of wild horses, unless the penalty has been fixed by law, is guilty of a misdemeanor and upon conviction shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
SECTION 14. Section 30-18-1 NMSA 1978 (being Laws 1999, Chapter 107, Section 1, as amended) is amended to read:
"30-18-1. CRUELTY TO ANIMALS--EXTREME CRUELTY TO
ANIMALS--PENALTIES--EXCEPTIONS.--
A. As used in this section, "animal" includes wild horses, as defined in the Wild Horse Protection and Habitat Act, and does not include insects or reptiles.
B. Cruelty to animals consists of a person:
(1) negligently mistreating, injuring, killing without lawful justification or tormenting an animal; or
(2) abandoning or failing to provide necessary sustenance to an animal under that person's custody or control.
C. As used in Subsection B of this section, "lawful justification" means:
(1) humanely destroying a sick or injured
animal; or
(2) protecting a person or animal from death or injury due to an attack by another animal.
D. Whoever commits cruelty to animals is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. Upon a fourth or subsequent conviction for committing cruelty to animals, the offender is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
E. Extreme cruelty to animals consists of a person:
(1) intentionally or maliciously torturing, mutilating, injuring or poisoning an animal; or
(2) maliciously killing an animal.
F. Whoever commits extreme cruelty to animals is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
G. The court may order a person convicted for committing cruelty to animals to participate in an animal cruelty prevention program or an animal cruelty education program. The court may also order a person convicted for committing cruelty to animals or extreme cruelty to animals to obtain psychological counseling for treatment of a mental health disorder if, in the court's judgment, the mental health disorder contributed to the commission of the criminal offense. The offender shall bear the expense of participating in an animal cruelty prevention program, animal cruelty education program or psychological counseling ordered by the court.
H. If a child is adjudicated of cruelty to animals, the court shall order an assessment and any necessary psychological counseling or treatment of the child.
I. The provisions of this section do not apply to:
(1) fishing, hunting, falconry, taking and trapping, as provided in Chapter 17 NMSA 1978;
(2) the practice of veterinary medicine, as provided in Chapter 61, Article 14 NMSA 1978;
(3) rodent or pest control, as provided in Chapter 77, Article 15 NMSA 1978;
(4) the treatment of livestock and other animals used on farms and ranches for the production of food, fiber or other agricultural products, when the treatment is in accordance with commonly accepted agricultural animal husbandry practices;
(5) the use of commonly accepted Mexican and American rodeo practices, unless otherwise prohibited by law;
(6) research facilities licensed pursuant to the provisions of 7 U.S.C. Section 2136, except when knowingly operating outside provisions, governing the treatment of animals, of a research or maintenance protocol approved by the institutional animal care and use committee of the facility; or
(7) other similar activities not otherwise prohibited by law.
J. If there is a dispute as to what constitutes commonly accepted agricultural animal husbandry practices or commonly accepted rodeo practices, the New Mexico livestock board shall hold a hearing to determine if the practice in question is a commonly accepted agricultural animal husbandry practice or commonly accepted rodeo practice."
SECTION 15. Section 30-18-1.2 NMSA 1978 (being Laws 1999, Chapter 107, Section 3, as amended) is amended to read:
"30-18-1.2. DISPOSITION OF SEIZED ANIMALS.--
A. If the court finds that a seized animal is not being cruelly treated and that the animal's owner is able to provide for the animal adequately, the court shall return the animal to its owner.
B. If the court finds that a seized animal is being cruelly treated or that the animal's owner is unable to provide for the animal adequately, the court shall hold a hearing to determine the disposition of the animal.
C. An agent of the New Mexico livestock board, an animal control agency operated by the state, a county or a municipality, or an animal shelter or other animal welfare organization designated by an animal control agency or an animal shelter, in the custody of which an animal that has been cruelly treated has been placed may petition the court to request that the animal's owner may be ordered to post security with the court to indemnify the costs incurred to care and provide for the seized animal pending the disposition of any criminal charges of committing cruelty to animals pending against the animal's owner.
D. The court shall determine the amount of security while taking into consideration all of the circumstances of the case, including the owner's ability to pay, and may conduct periodic reviews of its order. If the posting of security is ordered, the animal control agency, animal shelter or animal welfare organization may, with permission of the court, draw from the security to indemnify the costs incurred to care and provide for the seized animal pending disposition of the criminal charges.
E. If the owner of the animal does not post security within fifteen days after the issuance of the order, or if, after reasonable and diligent attempts the owner cannot be located, the animal may be deemed abandoned and relinquished to the animal control agency, animal shelter or animal welfare organization for adoption or humane destruction; provided that if the animal is livestock other than poultry associated with cockfighting, the animal may be sold pursuant to the procedures set forth in Section 77-18-2 NMSA 1978.
F. Nothing in this section shall prohibit an owner from voluntarily relinquishing an animal to an animal control agency or shelter in lieu of posting security. A voluntary relinquishment shall not preclude further prosecution of any criminal charges alleging that the owner has committed felony cruelty to animals.
G. Upon conviction, the court shall place the animal with an animal shelter or animal welfare organization for placement or for humane destruction.
H. As used in this section, "livestock" means all domestic or domesticated animals that are used or raised on a farm or ranch and exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae but does not include wild horses, as defined in the Wild Horse Protection and Habitat Act, or canine or feline animals."
SECTION 16. Section 77-2-1.1 NMSA 1978 (being Laws 1993, Chapter 248, Section 2, as amended) is amended to read:
"77-2-1.1. DEFINITIONS.--As used in The Livestock Code:
A. "animals" or "livestock" means all domestic or domesticated animals that are used or raised on a farm or ranch, including the carcasses thereof, and exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae upon any land in New Mexico. "Animals" or "livestock" does not include wild horses, as defined in the Wild Horse Protection and Habitat Act, or canine or feline animals;
B. "bill of sale" means an instrument in substantially the form specified in The Livestock Code by which the owner or the owner's authorized agent transfers to the buyer the title to animals described in the bill of sale;
C. "bison" or "buffalo" means a bovine animal of the species bison;
D. "board" means the New Mexico livestock board;
E. "bond" means cash or an insurance agreement from a New Mexico licensed surety or insurance corporation pledging surety for financial loss caused to another, including certificate of deposit, letter of credit or other surety as may be approved by the grain inspection, packers and stockyards administration of the United States department of agriculture or the board;
F. "brand" means a symbol or device in a form approved by and recorded with the board as may be sufficient to readily distinguish livestock should they become intermixed with other livestock;
G. "brand inspector" means an inspector who is not certified as a peace officer;
H. "carcasses" means dead or dressed bodies of livestock or parts thereof;
I. "cattle" means animals of the genus bos, including dairy cattle, and does not include any other kind of livestock;
J. "dairy cattle" means animals of the genus bos raised not for consumption but for dairy products and distinguished from meat breed cattle;
K. "director" means the executive director of the board;
L. "disease" means a communicable, infectious or contagious disease;
M. "district" means a livestock inspection district;
N. "estray" means livestock found running at large upon public or private lands, either fenced or unfenced, whose owner is unknown, or that is branded with a brand that is not on record in the office of the board or is a freshly branded or marked offspring not with its branded or marked mother, unless other proof of ownership is produced;
O. "inspector" means a livestock or brand inspector;
P. "livestock inspector" means a certified inspector who is granted full law enforcement powers for enforcement of The Livestock Code and other criminal laws relating to livestock;
Q. "mark" means an ear tag or ownership mark that is not a brand;
R. "meat" means the edible flesh of poultry, birds or animals sold for human consumption and includes livestock, poultry and livestock and poultry products;
S. "mule" means a hybrid resulting from the cross of a horse and an ass; and
T. "person" means an individual, firm, partnership, association, corporation or similar legal entity."
SECTION 17. Section 77-16-1 NMSA 1978 (being Laws 1909, Chapter 70, Section 1, as amended) is amended to read:
"77-16-1. FENCES--WHEN REQUIRED.--[Section 1.] Every gardener, farmer, planter or other person having lands or crops that would be injured by trespassing animals or wild horses, as defined in the Wild Horse Protection and Habitat Act, shall make a sufficient fence about [his] the land in cultivation or other lands that may be so injured, the same to correspond with the requirements of the laws of this state prescribing and defining a legal fence."
SECTION 18. APPROPRIATION.--Three hundred thousand dollars ($300,000) is appropriated from the general fund to the New Mexico equine board for expenditure in fiscal year 2020 to carry out the Wild Horse Protection and Habitat Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2020 shall revert to the general fund.
SECTION 19. REPEAL.--Section 77-18-5 NMSA 1978 (being Laws 2007, Chapter 216, Section 1) is repealed.
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