Livestock fencing bill receives "do pass"

Senate Bill 212 reinstating the New Mexico Department of Transportation’s duty to maintain fencing, cattle guards and livestock warning signs on public highways, received mixed reviews from rancher Preston Stone, chairman of the Lincoln County Commission.

Driving in rural areas of the county and many parts of the state can present a fatal hazard, especially at night, if cattle or horses are on the roadway.

Sen. Pat Woods, Republican from District 7, introduced the bill, which was amended by the Senate Conservation Committee and received a “do pass” recommendation.

Senate Bill 121 requires owners or custodians of livestock to exercise "due diligence" to keep livestock off state highways and to report to the New Mexico Department of Transportation any damage or disrepair of fences maintained by agency adjoining the livestock owner or custodian’s property.

In turn, DOT would be required to construct, inspect and maintain fences along all highways under its jurisdiction that are constructed or improved from time to time and to provide cattle underpasses, water pipelines and cattle guards, as necessary, unless it makes a fact determination that no livestock can enter the highway from a portion left unfenced.

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The agency also would also be required to sign every two miles all highways under its jurisdiction that are not fenced on both sides and that are located adjacent to property containing livestock. The signs would warn motorists that loose livestock may be encountered and to exercise caution.

“I read the original bill and the one amended in committee and it is a double-edged sword,” Stone said. “Most of the fences along the state highways are built either by DOT or by one of its contractors. The spacing of the wire is designed to be wildlife friendly.”

But under a designed mutually accepted by officials from DOT and from the Department of Game and Fish, the spacing is not necessarily friendly for livestock, he said.

“The spacing is set so that a fawn and a calf elk can crawl through the fence with ease, but that means a baby calf can do the same thing,” Stone said. “We ranchers have fought the spacing of the wire forever, but that is their criteria and we have to accept it. Ranchers are professional fence builders, because we do that as a living also. Most of the fencing contractors are professionals, but they don’t build a fence worth a flip. They don’t put the stretch posts at proper intervals and the fence isn’t tight enough to keep cattle from getting through the fences.

“If that fence is state-built, there is no agreement with a landowner to maintain them. That comes under responsibility of DOT. So, if I have a fence my cattle are getting out on, it behooves me or my family or employee to immediately put that animal back inside the pasture where it belongs, recognize the place where the fence needs maintenance and instead of waiting  for the DOT to get there two or three days or a week later, fix that fence so I am not liable when our livestock get out on the highway.”

He recalled an accident three years ago in Wyoming when fatalities occurred after a car hit cattle on a dark road. Although it was DOT’s fence, the livestock owner was found negligent and liable.

“I don’t see where the bill benefits ranchers one way or the other,” Stone said. “If there is a state highway that runs through a pasture that is unfenced, the bill says livestock signs should be placed every two miles. I think it should be every mile and they should say caution, not just livestock. Even that does not slow people down, but it protects  me as a livestock owner from being negligent, if a black bull is out at night and someone hits it and rolls their car.

“People need to remember that ranchers are caretakers of the animals and we would not deliberately allow them to be on the right of way where they could cause harm.”

Losing livestock also harms a rancher’s income, he added.

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“The last thing I want is for my black bull to cause a fatality in someone’s family,” Stone said.

Under the fiscal analysis by the Legislative Counsel, to comply with SB 121, DOT would have to create a detailed inventory of all sections of state highways that are unfenced and determine if livestock is present in these areas and whether they could enter the roadway. If livestock could enter the roadway, the department would have to fence the area or post signs warning motorists of unfenced livestock.

DOT reports in the senate bill that the current cost per mile to fence a highway is $3.10 per linear foot, or $16,368 per mile. The cost of fencing both sides of a highway would be approximately $32,736 per mile.

Significant issues reported by DOT are that as written, the bill does not allow for any discretionary balancing of safety, highway usage and economic factors, and provides no guidance for determining when a highway should be fenced or posted at two-mile intervals regardless of other factors such as safety, traffic usage, visibility and geography, the counsel noted.

The general office would likely need to work with individual transportation districts to construct an inventory of unfenced property. That would require staff time that would otherwise be allocated for roadway cleanup, maintenance, and construction, the analysis pointed out.

On new highway projects or improvements involving new right-of-way boundaries, DOT constructs new fencing, and on older established roads, each transportation district has discretion on maintenance and replacement of fences, the counsel wrote.

Where state highways are unfenced and pass through federal- or state-owned public lands leased to private livestock owners, the federal or state lessors could assume the associated fencing or posting costs. Where state highways pass through privately owned unfenced property, DOT commonly enters into cooperative fencing agreements where DOT provides the fence materials and the lessee or owner installs the fence within the DOT right-of-way so that DOT owns the fence.