Two Court Victories in One Week: Fayerberg Dodd Defends New Mexico's Wildlife Laws

Last week brought two significant wins for Fayerberg Dodd — and for the people, animals, and communities that depend on New Mex

ico's wildlife and the laws protecting it. In separate decisions issued days apart, both the New Mexico Court of Appeals and the Tenth Circuit ruled in favor of our clients, upholding the State's authority to manage and protect our wildlife against legal challenges that sought to redirect that authority to the courts.

Here's what happened in each case, and why these rulings matter beyond the courtroom.

Elk, Land, and Livelihoods: Court Rules State Not Liable for Herd Damage to Private Property

Kiehne v. New Mexico Department of Game and Fish — New Mexico Court of Appeals, June 3, 2026

To understand this case, you need to understand what elk mean to Catron County.

Catron County is one of the most rural, most sparsely populated counties in the United States. It has no traffic lights. Its economy turns largely on hunting — and at the center of that economy is the Greater Gila Herd, a population of Rocky Mountain elk now estimated at up to 27,000 animals. Hunters travel from across the country to pursue elk in Catron County. That hunting supports outfitters, guides, lodges, restaurants, and ranches. The elk are not incidental to the local economy — they largely are the local economy.

The New Mexico Appeals Court ruled on June 3, 2026, that state wildlife officials are not liable for damage to private property in Catron County, and that changes to elk management policies should be handled by the state’s Legislature or in rulemaking. (Photo Courtesy of New Mexico Department of Wildlife)

The elk also, inevitably, move across the landscape, including onto private property. Seven Catron County landowners sued the New Mexico Department of Game and Fish and the State Game Commission, arguing that decades of elk management had allowed the herd to grow to a size that caused unacceptable damage to their fences, crops, and land. They asked the courts to hold the state financially responsible and to order it to reduce the herd through additional hunting authorizations.

The Court of Appeals unanimously said no.

On the takings claim, the court held that the state's role as trustee of New Mexico's wildlife does not make it legally responsible for where wild a

nimals go. The elk are not instruments of the government. Their presence on private land is not legally attributable to the state simply because the state manages how many can be hunted each year. The court also rejected the argument that the regulatory program — which governs hunting licenses, the EPLUS landowner permit system, and depredation assistance — deprived plaintiffs of any property right, since nothing in those regulations requires elk to be on private land or prevents landowners from fencing them out.

On the nuisance claim, the court held that the Commission's and Department's wildlife management decisions are exactly the kind of discretionary, legislatively authorized policymaking that courts are not equipped to override. Ordering the state to authorize more population management hunts would require a judge to function as a semi-permanent wildlife administrator — evaluating herd data, setting harvest targets, and second-guessing agency biologists and commissioners who were specifically created and empowered by the Legislature to make those calls. The court directed landowners to the appropriate channels: the Commission's public rulemaking process and the Legislature.

This is an important result not just for the state agencies involved, but for the integrity of New Mexico's wildlife management system. Science-based, publicly accountable decisions about herd size belong with the people and institutions the Legislature has trusted with them — not with courts responding to litigation brought by individual landowners. And those decisions, including decisions about elk populations that sustain entire county economies, need to be made with the full picture in view.

Read the published opinion here.

Listen to firm partner Christopher Dodd's oral argument here.

Protecting People and Pets: Trapping Ban Upheld Against Constitutional Challenge

New Mexico Trappers Association v. Torrez — U.S. Court of Appeals for the Tenth Circuit, June 8, 2026

In 2021, New Mexico voters passed what became known as Roxy's Law — named for a dog who was caught and killed in a leg-hold trap while on a walk with her owner on public land. The New Mexico Wildlife Conservation and Public Safety Act broadly prohibits the use of traps, snares, and wildlife poison on public land. The law was driven by documented harms to pets, to people, and to non-target wildlife — the kind of indiscriminate suffering that traps cause regardless of what animal stumbles into them.

Photo of Roxy, who was strangled to death by a snare set on public land by a trapper in 2018. (Photo by Kathrina Clark)

Three trapping organizations sued to challenge the law, targeting a specific provision that allows enrolled members of federally recognized tribes to trap for religious or ceremonial purposes. They argued that this exception violated equal protection and free exercise guarantees under both the U.S. and New Mexico Constitutions — and that if the exception fell, the entire law should fall with it.

The Tenth Circuit affirmed dismissal of all claims for lack of standing.

On the plaintiffs' core injuries — that they couldn't trap — the court held those injuries were not redressable. Even if the tribal exception were struck down, the general trapping ban would remain intact. The plaintiffs would still be prohibited from trapping on public land. The court also rejected the severability argument, finding no basis in text or legislative history to conclude the Legislature would have refused to pass the trapping ban without the exception. The purpose of the law was to protect wildlife, people, and pets — and that purpose stands on its own.

On the plaintiffs' theory that the mere existence of the exception causes them stigmatic and psychological harm — by communicating government preference for Native Americans — the court dismissed those claims as unripe. The State has never promulgated rules to implement the exception, meaning no tribal trapping has ever occurred under it. Asking a court to rule on the constitutionality of a provision that has never been put into operation would be asking for an advisory opinion, which federal courts cannot issue. The court also noted that even setting ripeness aside, the theory amounted to a generalized grievance that any person in the country could assert — and that kind of abstract, diffuse harm is not enough to bring a federal lawsuit.

The bottom line: New Mexico's public land trapping ban remains fully intact. The law that New Mexico voters passed to protect their dogs, their families, and the state's wildlife continues to do exactly what it was designed to do.

Read the full decision here.

Listen to the oral argument presented by firm partner Amber Fayerberg here.

What These Cases Mean Together

These two rulings arrived within days of each other and share a common thread: in both cases, challengers asked the courts to step in and rewrite how New Mexico manages and protects its wildlife, and in both cases the courts declined.

In Trappers, the real grievance was with a law New Mexico voters chose to enact to keep public lands safe for people and animals. The courts are not the place to relitigate that choice. In Kiehne, the relief sought would have turned a judge into an ongoing wildlife regulator, overriding the expertise of agency biologists and the public accountability of the rulemaking process in favor of the preferences of a handful of litigants.

Wildlife management in New Mexico touches something real — the safety of a family hiking with their dog, the livelihood of an outfitter in Catron County, the cultural practices of tribal communities, the health of ecosystems that belong to all of us. Getting those decisions right requires expertise, public input, and democratic accountability. It requires the agencies and lawmakers the people of New Mexico have entrusted with this work.

That is what these rulings protect. And we are proud to have been part of defending it.