MACHIAS – A Steuben woman can proceed with her appeal of a court order giving custody of her five thoroughbred horses to the Maine Society for the Protection of Animals, but she must post a $5,000 security, a judge has decided.

Superior Court Justice Andrew Mead’s order Monday rejected a motion by the state Department of Agriculture to dismiss the appeal filed by Peggy Drake.

Drake is appealing a Nov. 22 ruling by Machias District Court Judge John Romei, who presided over a custody hearing on the horses. He found that Drake treated her animals cruelly and that they were nearly starving when state humane agent John Grundman removed them from her property Sept. 21.

The state had argued that Drake’s appeal should be dismissed because she failed to post the security, which is required by state statute.

Mead declined to dismiss the appeal, but ordered Drake to post the $5,000 in cash or surety within 30 days. The $5,000 is to cover the costs the protection society will incur in caring for the horses while Drake’s appeal works its way through the court system.

The society is a private, nonprofit organization in Windham that cares for horses seized by state humane agents. Anne Jordan, the society’s attorney, said it depends on donations and normally puts abused or neglected animals up for adoption once they have recovered their health.

Jordan said it costs the society $15 a day to care for a horse and that does not cover the cost of veterinary care or any medication that is needed.

But the society is prohibited from putting the animals up for adoption while an appeal is pending, and that is the rationale for the law requiring defendants who file appeals to post the security, Jordan said.

Drake’s horses have been at the society’s Windham farm since Sept. 23, two days after Grundman obtained a warrant to take them from Drake.

The animals are 15 to 30 years old and 200 to 400 pounds underweight, according to state veterinarian Donald E. Hoenig. Hoenig examined the horses the day after they were taken from Drake and wrote in his evaluation that they appeared to be suffering from “long-term neglect.”

According to court documents, Drake maintains that the horses were unable to eat because they were plagued by black flies and mosquitoes just as they had begun to recover from a harrowing 15-day trip across country when Drake moved from Nevada to Maine in October 1999.

Jordan said the oldest horse died at the Windham farm.

Drake’s appeal will now go forward, but on Monday she filed a motion to dismiss her attorney, Sophie Spurr of Blue Hill.

Spurr replaced Joseph Baldacci of Bangor – Drake’s attorney during the Nov. 22 custody hearing. She said Tuesday that she doesn’t know why Drake decided to dismiss her, but suspects the reason is financial.

Spurr said she donated the time it took her to write Drake’s appeal brief but told Drake she would have to charge her for subsequent services.

“She was just in despair about losing her horses,” Spurr said in response to a question about why she provided her services without charge.

Drake did not return a message left on her answering machine Tuesday afternoon.

Spurr’s appeal maintains that Romei erred in his Nov. 22 decision to award permanent custody of the horses to the protection society.

Malnourishment is not defined by statute but is a medical condition and the state failed to prove that Drake’s horses were malnourished, according to Spurr’s appeal brief.

Spurr wrote that Dr. David Jefferson, an equine veterinarian and the state’s primary witness, concluded that the horses were malnourished, but that Jefferson did not examine the horses until five days after they were taken from Drake. By that point, the horses had been traumatized by trailer trips to Hancock and then to the Windham farm, and the fact that they’d been separated from Drake, who had been their lifelong caregiver, according to Spurr’s brief.

Jefferson “grossly miscalculated” the ages of the two older horses and his math was flawed, Spurr wrote. As a result, he erred when he compared their weight to “ideal weights,” she said.

Spurr maintained the court abused its discretion in failing to hold a hearing on possible remedial actions other than forfeiture of the animals.

According to Drake’s motion to dismiss Spurr, Drake is now representing herself in the appeal.