SENATE INDIAN, RURAL AND CULTURAL AFFAIRS

COMMITTEE SUBSTITUTE FOR

SENATE BILL 385

55th legislature - STATE OF NEW MEXICO - first session, 2021

 

 

 

 

 

 

 

AN ACT

RELATING TO ANIMALS; PROVIDING PROTECTIONS, REQUIREMENTS AND PROCEDURES TO BE FOLLOWED FOR THE CAPTURE OR REMOVAL OF WILD HORSES ON PUBLIC OR PRIVATE LAND; PROVIDING FOR THE DEVELOPMENT OF WILD HORSE HERD MANAGEMENT PLANS AND COOPERATIVE AGREEMENTS TO MANAGE WILD HORSES; EXCLUDING WILD HORSES AND OTHER ANIMALS FROM THE DEFINITION OF "LIVESTOCK"; AMENDING DEFINITIONS IN THE LIVESTOCK CODE; SPECIFICALLY INCLUDING WILD HORSES IN THE CRUELTY TO ANIMALS STATUTE; MAKING TECHNICAL CHANGES; REPEALING AND REENACTING SECTION 77-18-5 NMSA 1978 (BEING LAWS 2007, CHAPTER 216, SECTION 1).

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. 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 a wild horse as defined in Section 77-18-5 NMSA 1978 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 2. 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] including the carcasses thereof, and:

                (1) includes [horses, asses, mules] equines, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids, [and] farmed cervidae [but does not include canine or feline] and exotic animals in captivity; but

                (2) does not include:

                     (a) wild horses as defined in Section 77-18-5 NMSA 1978;

                     (b) equines subject to the jurisdiction of the federal government pursuant to the federal Wild Free-Roaming Horses and Burros Act;

                     (c) canine or feline animals;

                     (d) feral hogs; or

                     (e) game mammals as defined in Section 17-2-3 NMSA 1978, except farmed cervidae."

     SECTION 3. 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]:

                (1) includes [horses, asses, mules] equines, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids, [and] farmed cervidae [upon any land in New Mexico. "Animals" or "livestock"] and exotic animals in captivity; but

                (2) does not include [canine or feline animals]:

                     (a) wild horses as defined in Section 77-18-5 NMSA 1978;

                     (b) equines subject to the jurisdiction of the federal government pursuant to the federal Wild Free-Roaming Horses and Burros Act;

                     (c) canine or feline animals;

                     (d) feral hogs; or

                     (e) game mammals as defined in Section 17-2-3 NMSA 1978, except farmed cervidae;

          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:

                (1) whose owner is unknown but that exhibits evidence of private ownership; or

                (2) 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] a chip, 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] a burro; and

          T. "person" means an individual, firm, partnership, association, corporation or similar legal entity."

     SECTION 4. Section 77-18-5 NMSA 1978 (being Laws 2007, Chapter 216, Section 1) is repealed and a new Section 77-18-5 NMSA 1978 is enacted to read:

     "77-18-5. [NEW MATERIAL] WILD HORSES--PROTECTION--DISPOSITION PROCEDURES.--

          A. A state agency, county, municipality or political subdivision with jurisdiction over the land on which a wild horse is found, or a person that owns, leases or administers land on which a wild horse is found, may request the board to capture the wild horse if:

                (1) the wild horse presents a serious and persistent threat of physical harm to, or has physically harmed, the health and safety of a human or domestic animal;

                (2) the wild horse requires veterinary care, the application of immunocontraception or sterilization; or

                (3) the wild horse range occupied by the wild horse has exceeded its carrying capacity.

          B. A wild horse that has been captured shall be returned to the wild horse range on which the wild horse was found whenever reasonably possible.

          C. A wild horse may only be permanently removed from its wild horse range if:

                (1) the wild horse is too unhealthy or injured to return to its range, as determined by the state veterinarian; or

                (2) a state agency, county, municipality or political subdivision with jurisdiction over any portion of the wild horse range:

                     (a) conducts or contracts with an entity to conduct a wild horse herd study that determines the wild horse range has exceeded its carrying capacity;

                     (b) develops and implements a wild horse herd management plan; and

                     (c) upon review of the wild horse herd study and wild horse herd management plan, develops a proposal for wild horse removal and disposition options and approves the proposal after a thirty-day public comment period, holding a public hearing and duly considering all relevant input and information.

          D. A wild horse herd study shall:

                (1) include:

                     (a) a wild horse population survey using science-based methods;

                     (b) a determination of the wild horse range's carrying capacity, taking into account factors including available water and forage and other wildlife and domestic animal pressures on the landscape and excluding consideration of private property; provided that pursuant to Subsection J of this section, an owner of private property may by agreement have the owner's private property considered in determining the wild horse range's carrying capacity; and

                     (c) a determination of the minimum and maximum number of wild horses that can be sustained on the wild horse range; and

                (2) be conducted by an individual who has:

                     (a) at minimum, a bachelor's degree in animal science, equine science or range science or a closely related field of study;

                     (b) experience in New Mexico habitat issues with specific experience with carrying capacity analyses;

                     (c) knowledge of New Mexico land status designations and associated management agencies; and

                     (d) knowledge of the New Mexico statutes annotated relating to livestock, wildlife, conservation and property rights.

          E. A wild horse herd management plan shall be a comprehensive plan for managing, protecting and maintaining wild horses and shall include:

                (1) the methodology and results of any relevant wild horse herd study;

                (2) non-lethal on-range management, which may include immunocontraceptives, for any wild horses that will remain on the wild horse range;

                (3) restrictions and regulation of artificial or supplemental feed and water for wild horses on the wild horse range;

                (4) a proposal for the disposition of removed wild horses, including fiscal impacts and funding sources; and

                (5) due consideration of other conflict mitigation as appropriate, including traffic collision prevention, private land deterrence measures, range restoration projects and reduction in domestic animals on the wild horse range.

          F. A wild horse permanently removed from its wild horse range shall be:

                (1) relocated to a wild horse range that has not exceeded its carrying capacity, as allowed by law;

                (2) transferred to a horse rescue or retirement facility, licensed by the board, to:

                     (a) make the horse available for adoption or foster care;

                     (b) transfer the horse to another qualified rescue or retirement facility; or

                     (c) provide lifelong sanctuary for the horse; or

                (3) relocated to a wild horse preserve, with the agreement of the preserve owner or operator.

          G. A wild horse shall not be harmed, harassed or sold for the purpose of slaughter for consumption.

          H. If the board captures a horse and the board determines that the horse is subject to the jurisdiction of the federal government pursuant to the federal Wild Free-Roaming Horses and Burros Act, the board shall transfer the horse to the federal bureau of land management or the United States forest service, as appropriate.

          I. A political subdivision may enter into an agreement with a state or federal agency; another political subdivision; a contract service provider; a nonprofit organization; an Indian nation, tribe or pueblo; or an owner of land designated as a private wild horse preserve to provide:

                (1) wild horse range;

                (2) identification and herd monitoring;

                (3) supplemental feed or veterinary care;

                (4) on-range fertility control;

                (5) public safety measures; or

                (6) consultations or resources to prevent unwanted damage to private property, including fencing or deterrents.

          J. An owner of private property contiguous with public property that is part of a wild horse range may enter into an agreement with the state agency, county, municipality or political subdivision that is undertaking a wild horse herd study to have the private property considered in the determination of the wild horse range's carrying capacity. The agreement shall be a restriction on the private property and shall:

                (1) be recorded as an easement in the office of the county clerk and run with the land;

                (2) have a term of no less than five years and be irrevocable during the term of the agreement;

                (3) include a legal description of what part of the private property is subject to the restriction; and

                (4) prohibit the owner of the private property from taking any action to impede access by wild horses to that part of the private property subject to the easement or to alter or impair conditions on the private property that were used in determining the wild horse range's carrying capacity, in addition to any other terms agreed to by the parties.

          K. As used in this section:

                (1) "adoption" means adoption by a qualified individual who has demonstrated the capacity and intent to provide humane treatment and lifelong care of the animal, including proper transportation, feeding and handling;

                (2) "carrying capacity" means the number of animals that can be sustained on a given amount of land;

                (3) "wild horse" means a horse that is unclaimed and without obvious brands or without other evidence

of private ownership, but does not include horses that are subject to the jurisdiction of the federal government pursuant to the federal Wild Free-Roaming Horses and Burros Act;

                (4) "wild horse preserve" means land designated by a state or federal agency, county, municipality or other political subdivision, or the owner or operator of private land, and approved by the board, as a refuge for non-reproducing wild horse herds with perimeter fencing, necessary infrastructure to ensure availability of water, feed or forage and adequate acreage for horse health and room to roam; and

                (5) "wild horse range" means the general area or territory occupied by a wild horse where the wild horse's herd or family band is or has been located."

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