WHAT IS NEW MEXICO FENCE LAW?

WHAT IS NEW MEXICO FENCE LAW?

Every year I will receive a phone call or two asking about what the law is in New Mexico on livestock and fencing.  Chapter 77 article 16 defines what a legal NM fence is.   So if you are building a fence to control livestock it should be built to these specifications.  You may want to consult with an attorney as to what the liabilities are for constructing a fence that is not a “legal NM fence”.

Every state has a “fence law”.  Most eastern states require livestock owner to fence livestock in by common law, while most western states are “Open Range law”.   As urban areas expand, and traditionally rural areas of New Mexico begin to see growing populations and housing developments, conflicts between new and existing residents seem inevitable. Fencing and livestock trespass are at the root of many of these problems, but the responsibilities of all parties are clearly defined in New Mexico’s fence-out law.  “The roots of the fence-out law in New Mexico and other western states go back to the settlement of the West,” according to Andrea Buzzard of the New Mexico Attorney General’s Office. “New Mexico’s fence-out law is a common feature of several Western states, and has been described by New Mexico’s courts as “the common law of the west.”  “The common law of England imposed a duty on the owner of livestock to fence cattle in, and no duty was placed on the adjoining landowner to fence them out. But from the period when Western grazing lands first passed into private ownership, Western cattle states generally rejected the common law, holding that livestock roaming at large committed no trespass when they strayed on unenclosed land. This is commonly referred to as open range state.  “By law, New Mexico is and always has been a fence-out state,” said Myles Culbertson, Former Director of the New Mexico Livestock Board (NMLB). “A property owner has a responsibility to himself to protect his own property by fencing out whatever may damage or trespass on property.” The current law, which has not changed much over the years, still serves the industry well. “It’s not unreasonable for a property owner to be expected to fence and protect his own property rather than expecting someone else to do it for him,” Culbertson noted. “There is no reason the law is not still sufficient.”

Fencing responsibilities may not always lie with individual landowners. In most cases, fencing is required for state roads and highways, and communities and municipalities have some responsibility, as well.  In general when you are off a state or federal highway, and out of town you are on a county road, BLM, forest service, or private road,  you should assume that there are fee roaming livestock and pay due diligent not to hit them.  A survey conducted in 2014 in Eddy County indicated that   Eddy Cattle small business in the Livestock business lost over one million dollars in inventory (cow, calves, bulls, horses, sheep) due to interactions with motor vehicles, most were never reported to the Sheriff’s office, NM Livestock Board, or the owner of the livestock which is also a violation of New Mexico law.   As back road traffic has increased this problem has also increased, and NMSU Eddy County office will be conducting another survey soon.   This can be a significant economic impact on that small business.  Often the animal is only wounded and suffers for hours or days before dying or being found and humanly euthanized.  To me that is just animal cruelty, and wrong.  In a discussion with one person who called my office after hitting livestock, I asked what if that animal had been a person walking or on a bike, or it could have been wildlife like a deer or elk.  

In many cases, the problem is not the lack of a fence, but fences being cut and/or gates being left open by someone other than the rancher.  Both of these are against New Mexico law as well. “The larger problem we face is the lack of respect of property. People just don’t understand the importance of a fence, and how it benefits everyone,” Mr. Culbertson said.  “It is also important for the public to also understand the economic importance of livestock to their owners, and the local economy. Livestock owners don’t want their livestock out running on the golf course, or in someone’s yard, they want them at home.”

Adopted from a NMLB Press release, for more about the New Mexico law can be found at: NEW MEXICO STATUTES ANNOTATED CHAPTERS 30, 66, and 77. CRIMINAL OFFENSES and the New Mexico Livestock Board web site: http://www.nmlbonline.com .  Eddy County Extension Service, New Mexico State University is an equal opportunity/affirmative action employer and educator.  All programs are available to everyone regardless of race, color, religion, sex, age, handicap, or national origin.  New Mexico State University, U.S. Department of Agriculture, and the Eddy County Government Cooperating.