ELR Citation: ELR 20509
No(s). 74-127 (D.N.M. Feb 28, 1975)

A three-judge district court holds the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§1331-40, unconstitutional as beyond the limits of a federal power. It cannot be sustained under either the Territorial Clause or the Commerce Clause. Under the common law, sovereign ownership of wild animals lay in the state in trust for the people. This ownership vested in the colonial government and passed to the states. Under the Territorial Clause, Congress' power to regulate public lands involves only protection of such lands from wild animals, not protection of the animals themselves. Since Congress made no findings that wild burros migrate across state lines, the Act cannot be sustained under the Commerce Clause. The question of whether the Act preempts New Mexico law need not be reached.

Counsel for Plaintiff
George J. Hopkins
Modrall, Sperling, Roehl, Harris & Sisk
8th Floor, Public Service Bldg.
Albuquerque NM 87103
(505) 243-4511

Counsel for Defendant
Victor R. Ortega, U.S. Attorney
James B. Grant, Asst. U.S. Attorney
Federal Office Bldg.
Albuquerque NM 87103
(505) 766-3341

Seth, Payne & Mecham, JJ.