Ruling seen as win for beavers
Judge’s decision also protects landowners from being responsible for behavior of wild animals
Lawrence Gallegos summed up a yearslong dispute over beavers and water flow between a private middle school for girls and a La Cieneguilla rancher who lives next door to property the school owns and has been restoring for more than 15 years.
“There’s a saying,” Gallegos said, “about how whiskey is for drinking and water is for fighting.”
Gallegos, the New Mexico landowner representative for the nonprofit Western Landowners Alliance, who has a background in ranching, was a witness in the ongoing civil case, filed in 2016 by landowner Ed Sceery against the Santa Fe Girls’ School. The lawsuit sought a court order for the school to remove beaver dams on its property or to “otherwise abate the flooding” on his land.
The Girls’ School had intentionally made its land “more attractive and amenable” to beavers, Sceery
argued, which he claimed were causing flooding that prevented him from accessing parts of his 46-acre property and made it impossible to graze cattle, forcing him to sell some of his livestock.
Gallegos testified during the trial that the flooding wouldn’t have prevented Sceery from grazing his cattle there.
Then-state District Judge David Thomson, who is now a New Mexico Supreme Court justice, decided in the school’s favor on key issues in the lawsuit, saying the school was not responsible for the impacts beavers have had on Sceery’s land in La Cieneguilla, a tiny community fed by flows from the Santa Fe River.
“The beavers are a natural condition of the land as much as the native vegetation used to populate their habitat,” the judge wrote in his ruling.
Environmentalists, a Santa Fe attorney and Gallegos — whose two daughters attended the Girls’ School — recently praised the ruling, saying it recognized
beavers as an important species for the state’s ecosystem and affirmed precedent protecting landowners from being sued over the behavior of wild animals.
Michael Dax, New Mexico representative for the environmental advocacy group Defenders of Wildlife, said he hopes the decision will set a precedent for the protection of beavers going forward.
“As we here in New Mexico and across the Southwest are looking at a future where drought is going to become more common, we need policies that are going to promote recovery of beavers and the water conservation benefits that they create,” he said.
Chris Smith, Southern Rockies wildlife advocate for the environmental group WildEarth Guardians, agreed. Beavers, he said, are native to New Mexico and important in a desert ecosystem.
“This decision reinforces what I think most New Mexicans believe, which is that native species — especially those that are mitigating the effects of drought and climate change — belong on our landscape,” he said, “and they need to be protected on our landscapes.”
The decision also has implications on land law.
Brian Egolf, a Santa Fe lawyer
who represented the Girls’ School, said if Sceery’s argument — that a private landowner has a duty to control wild animals that cause harm to a neighbor — had been successful, it would have overturned precedent across the West and left landowners vulnerable to lawsuits.
“If you have elk on your property and they leave your property … and as they leave your property, they trample the garden of your neighbor, you’re not under any obligation to prevent the elk from trampling your neighbor’s garden,” said Egolf, who also serves as the speaker of the state House of Representatives. “They’re wild animals.”
Gallegos said the ruling also affirms private property rights: “Your neighbor shouldn’t tell you how to manage your property,” he said.
Neither Sceery nor his lawyer in the case, Todd Coberly, responded to multiple requests for comment on the case.
Lee Lewin, founder and program director of the Girls’ School, declined to elaborate on the lawsuit, referring questions to Egolf. But she did say the school is “very satisfied with the judge’s order, and we feel as if the species, the ecology, the habitat [of the area] is going to continue to thrive.”
The school has done restoration work on its land since 2003,
Lewin said, including removing invasive species and planting native ones such as willow.
The restoration work on the Girls’ School land, she said, has “enhanced and supported the natural riparian nature of the area, and it has allowed wetlands … to grow.”
This has resulted in a diversity of animals, including beavers, she added.
The case is still active, Egolf said, because of a separate issue involving the nature and extent of Sceery’s water rights and whether he should have access to part of the Girls’ School property for irrigation ditch maintenance.
Thomson did not rule on that issue in September, Egolf said.
Sceery’s complaint against the Girls’ School in February 2016 came a few months after a judge granted a restraining order preventing Sceery from entering the school’s property because students working at the site had found a device with sharp hooks that Sceery had left there.
The device was intended to be used to tear down a beaver dam, Egolf said.
During the trial, Sceery also testified that he had shot a beaver on the Girls’ School property without permission from the school and without warning. Egolf called that a serious safety concern, as students are often on the property.