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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 WILD HORSE OBSERVERS
 3 ASSOCIATION, INC.,

 4          Plaintiff-Appellant,

 5 v.                                                                           No. A-1-CA-36011

 6 NEW MEXICO LIVESTOCK BOARD,

 7          Defendant-Appellee,

 8 and

 9   SUSAN BLUMENTHAL, ASH COLLINS,
10   SUSAN COLLINS, JON COUCH,
11   PETER HURLEY, JUDITH HURLEY,
12   ZANE DOHNER, CAROLYN E. KENNEDY,
13   LYNN MONTGOMERY, JOE NEAS,
14   MIKE NEAS, AND PAMELA NEAS,

15          Defendants by Intervention-Appellees.

16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
17 Valerie A. Huling, District Judge

18 Steven K. Sanders and Associates, LLC
19 Steven K. Sanders
20 Albuquerque, NM
 1 for Appellant

 2 Hector H. Balderas, Attorney General
 3 Ari Biernoff, Assistant Attorney General
 4 Santa Fe, NM

 5 for Appellee N.M. Livestock Board

 6 Reynolds Law Office
 7 David G. Reynolds
 8 Placitas, NM

 9 for Defendants by Intervention-Appellees

10                            MEMORANDUM OPINION

11 SUTIN, Judge.

12   {1}   Wild Horse Observers Association, Inc. (WHOA) appeals from the district

13 court’s order of dismissal without prejudice and disposing of all pending motions (the

14 Order), entered on September 23, 2016. [4 RP 885-87] In our notice of proposed

15 summary disposition, we proposed to affirm. In response to this Court’s notice,

16 WHOA filed a memorandum in opposition; the New Mexico Livestock Board (the

17 Board) filed a memorandum in support; and Defendants by Intervention filed a

18 memorandum in support. We have duly considered the responses, and for the reasons

19 stated in the notice of proposed disposition and in this opinion, we affirm.

20   {2}   In its docketing statement, WHOA raised a single issue: “may a party submit

21 an affidavit in support of a motion to dismiss and request the court to rely on that


                                              2
 1 affidavit and at the same time oppose and deny the opposing party discovery needed

 2 to test the information contained in the affidavit?” [DS 6] In our notice of proposed

 3 summary disposition, we proposed to affirm and stated:

 4                Based on our review of the record, it appears that WHOA’s
 5         complaint concerned the horses in Placitas, and WHOA specifically
 6         asked for an order pertaining to “the Placitas horse herd[.]” [1 RP 1-19
 7         (¶¶ 3, 8-9, 32-35, 40, 42, 45, 47-49, 59-63, 65-66, 71, 75)] It does not
 8         appear that WHOA made claims concerning horses statewide, and it does
 9         not appear that WHOA made claims regarding the “enticement” of the
10         Placitas horses onto private lands. [See generally 1 RP 1-19] Moreover,
11         it does not appear that WHOA filed an amended complaint to add such
12         claims. Thus, we are not persuaded that WHOA was entitled to the
13         discovery that it sought in its motion to open discovery. [See 4 RP 707-
14         12] Accordingly, we propose to conclude that the district court did not
15         abuse its discretion in denying WHOA’s motion to open discovery.

16 [CN 6]

17   {3}    In its memorandum in opposition, WHOA continues to “argue[] that it was

18 entitled to discovery to test the factual assertions of the [Board and Defendants by

19 Intervention] and that the case was one of [statewide] significance affecting horses

20 [statewide], not just horses in Placitas Open Space but on public lands near Placitas.”

21 [MIO 4; see generally MIO 3-9] Additionally, WHOA asserts that it did make claims

22 regarding the “enticement” of the Placitas horses onto private lands. [MIO 9-10; see

23 also 1 RP 13 (¶ 53), 14-15 (¶ 62(d)), 18 (¶ 3)] In its prayer for relief, WHOA asks this

24 Court to “remand this action to the [d]istrict [c]ourt and allow discovery of the actions

25 and practices of [the Board] throughout the state and that the Court allow discovery

                                               3
 1 of the actions of Defendants [by] Intervention in terms of enticing horses, capturing

 2 horses, moving horses, harassing horses, and allowing the [Board] to take possession

 3 of the horses without compliance with this Court’s orders and certainly without DNA

 4 testing.” [MIO 11]

 5   {4}   “Our courts have repeatedly held that, in summary calendar cases, the burden

 6 is on the party opposing the proposed disposition to clearly point out errors in fact or

 7 law.” Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. With

 8 respect to WHOA’s insistence that the allegations in its complaint demonstrate that

 9 this action involves the entire State of New Mexico, we are not persuaded. [See

10 generally MIO 3-9] WHOA’s memorandum provides no legal arguments or facts that

11 this Court has not already considered or that persuade this Court that the complaint

12 concerned statewide activities.

13   {5}   With respect to “enticement” allegations, WHOA pointed out that it did allege

14 the following:

15         53. On fenced and unfenced property, corrals have been set up
16         with food and water to draw the wild horses away from nearby
17         public lands and onto private land for impoundment and auction.

18         ....

19         62. [The Board] and its agents are violating the Livestock Code
20         by taking possession of the Placitas wild horses and selling them
21         as if they were estray livestock. These violations include, but are
22         not limited to:

                                               4
 1         ....

 2                d.    Unlawfully impounding, removing, and putting up
 3         for sale eight wild horses that reside on public lands but were
 4         impounded on private property by [the Board] and its agents.

 5 [MIO 9-10; see also 1 RP 13 (¶ 53), 14-15 (¶ 62(d))] Notably, these allegations

 6 pertain to the wild horses in Placitas [See 1 RP 12-15 (¶¶ 48-63)], while WHOA is

 7 seeking discovery regarding horses statewide. [MIO 5, 11]

 8   {6}   Based on the information before this Court, we cannot conclude that the district

 9 court erred in concluding that the issues related to the Placitas horses are moot, that

10 there exists no reason for discovery in regard to the Placitas horses, and in denying

11 WHOA’s motion to open discovery. [See 4 RP 885-86] Accordingly, for the reasons

12 stated in this opinion, as well as those provided in our notice of proposed disposition,

13 we affirm.

14   {7}   IT IS SO ORDERED.

15                                          __________________________________
16                                          JONATHAN B. SUTIN, Judge

17 WE CONCUR:


18 _______________________________
19 STEPHEN G. FRENCH, Judge


20 _______________________________

                                               5
1 HENRY M. BOHNHOFF, Judge




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