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Feeding wildlife could bite you in wallet

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Much of New Mexico has been in drought off and on for more than a decade, and significant relief in the near future is unlikely.

As my colleague John Fleck reported last week, the federal Climate Prediction Center says odds favor warm and drier-than-average weather at least through June.

That would mean another spring of depressed supplies of natural food – like grasses, berries and nuts – for bears, deer, elk, free-roaming horses and other animals.

If you live in a rural area, setting up a feeding and/or watering station for animals might sound like a good idea, but there is a legal risk if you attract animals and they cause damage to a neighbor’s property.

That’s according to an article last month by lawyer Dave Reynolds in New Mexico Lawyer, a publication of the State Bar of New Mexico.

Under common law, Reynolds wrote, a property owner isn’t liable for the acts of wildlife naturally located on the property.

A few members of a larger herd of wild horses near Placitas, NM, photographed March 21, 2013. (Journal File)

A few members of a larger herd of wild horses near Placitas, NM, photographed March 21, 2013. (Journal File)

“However, that safe harbor does not apply where the defendant contributes to the presence of the animals on the property, such as by feeding, watering or sheltering them,” the lawyer said.

Attracted animals could cause a range of troubles, including damage to vegetation, fences and irrigation systems, as well as motor vehicle crashes and human injuries.

Reynolds cited a case in North Carolina in which a property owner sued because his crops were allegedly raided by geese that had been purposely attracted by a neighbor to an artificial pond.

Like the North Carolina Supreme Court, New Mexico courts also have held that a property owner may be liable for damages caused outside the boundaries of the property, he wrote, later adding:

“Our domestic animals, and our wildlife, mean a great deal to most of us. While concerns about animal welfare can bring out the best in humanity, they also can cause some to elevate their concerns for animals over the welfare of others.”

Reynolds, a member of the State Bar’s Animal Law Section, lives in Placitas, just north of Albuquerque, where there has been much controversy among residents over free-roaming horses.

In a telephone interview, he said he wrote the legal analysis after being asked to speak at a community meeting on the potential civil liability of providing feed and water for the horses.

Reynolds said he opposes providing feed and water for the horses because of the threat they pose to public safety and the damage they cause to the environment, but said his legal analysis wasn’t colored by his opposition. He also said his article was subject to review by his peers.

My colleague Leslie Linthicum, reporting in July on the horse controversy in Placitas, wrote there was a herd of at least 100 horses and 20 of those were pregnant mares.

The increasing size of the herd and the drought have meant more damage to property.

Linthicum wrote that when someone posted a letter on the wall at the Placitas Post Office warning of potential civil liability for people who provide food and water for horses, someone wrote on the letter: “Will you nameless coward sue the entire community?”

Such a lawsuit, but not necessarily against the community of Placitas, is possible. Here’s what Reynolds wrote in his legal analysis:

“Property owners who provide food and water to wildlife, and individuals and organizations that assisted them in doing so, may very well have significant liability exposure for any damages proximately caused by those activities, under theories of negligence, nuisance, and civil conspiracy.”

MADD declines

Mothers Against Drunk Driving has declined a donation from the Blue Corn Cafe & Brewery in Santa Fe.

Blue Corn planned to donate 10 percent of food sales to MADD during a 15-day suspension of its liquor license.

The state Alcohol and Gaming Division recently ordered the license suspension and fined Blue Corn $10,000 for over-serving James Ruiz in March 2010. After leaving Blue Corn, Ruiz crashed his pickup into a car not far from the bar, killing car passengers Lynn Peshlakai, 19, and sister Deshauna, 17, of San Juan County.

Ben Lewinger, executive director of MADD’s New Mexico office, said the group declined the donation from Blue Corn because a lawsuit filed by Ruiz is pending.

In the lawsuit, filed in state District Court, Ruiz is seeking monetary damages from Blue Corn, a second bar and restaurant where he drank on the night of the accident and other defendants. He alleges the establishments were negligent for serving him when he was obviously drunk.

Instead of making a donation to MADD, Blue Corn now plans to give the money to the athletic department at Newcomb High School, which the Peshlakai sisters attended, according to Jim Hargrove, president of the restaurant group that includes Blue Corn.

The Peshlakai family has approved the plan, but the donation is still subject to school approval, Hargrove said.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to ABQjournal.com/letters/new to submit a letter to the editor.

 

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