Ranchers File Amended Complaint against NMDGF
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n May 2021, a group of eight Catron County ranchers filed suit against the New Mexico Department of Game & Fish (NMDGF) in New Mexico’s 7th Judicial District. The suit alleged the state’s management practices and the lack of response to claims for depredation and damage assistance amount to takings of private property without just compensation. The ranchers are seeking unspecified amounts of compensation for damages and legal costs. Since the first 25 head of Rocky Mountain elk were introduced into the Gila National Forest in 1936, the population has expanded, at rates reportedly accelerating in recent decades with current estimates of over 90,000 elk in New Mexico today. Herds regularly infiltrate area ranches and even make their way around the Reserve village center. At the Reserve Combined School, the school district recently added an additional wire over chain-link fencing around the grounds in a bid to keep out the elk, whose droppings are all around the student
drop-off area. Severe drought conditions have left the elk with less feed, increasing pressure on irrigated properties and stocks of water and feed for cattle. “The elk have just destroyed everything,” Zeno Kiehne, lead plaintiff in the case, said, “and they blame it all on the cattle.” On August 15, 2021 the group, along with four additional Catron County ranchers, filed an amended complaint alleging that the treatment of the ranchers is a violation of the newly passed and enacted New Mexico Civil Rights Act. The Act was passed in the 2021 Legislature as House Bill 4.
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rights, privileges or immunities secured pursuant to the bill of rights of the constitution of New Mexico. A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.
The Act In any claim for s t a te s : A damages or relief public body under the New Mexico The elk have just or person Civil Rights Act, no acting on public body or person destroyed everything,” behalf of, acting on behalf of, under color Kiehne said, “and they blame under color of or of or within within the course and the course scope of the authority it all on the cattle.” and scope of of a public body shall the authority of a public body shall not enjoy the defense of qualified immusubject or cause to be subjected any nity for causing the deprivation of any resident of New Mexico or person rights, privileges or immunities secured within the state to deprivation of any by the bill of rights of the constitution of New Mexico. The amended complaint requests an injunction requiring the NMDGF “to proactively re-direct, control, and/or fence out elk from the Plaintiff’s properties.” It also charges inverse condemnation under both state statute and the state’s Constitution. Under NMSA (1978) § 42A-1-29, a person authorized to exercise the right of eminent domain who has damaged any property for public use without making just compensation is liable to the condemnee for the damage thereto at the time the property was damaged. The Constitution provides private property shall not be taken or damaged for public use without just compensation. The Constitution also mandates compensation both when a governmental action results in a taking of property and when such action damages property. The NMDGF declined to comment on the pending lawsuit. Editor’s Note: This article was compiled with information from Algernon D’Ammassa, Las Cruces Sun-News
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SEPTEMBER 2021
