By Ben Neary
NMWF Conservation Director
ALBUQUERQUE — Responding to a federal court order, the New Mexico State Game Commission has set a special meeting to act on five pending applications from landowners seeking state certifications that rivers crossing their property are non-navigable and closed to the public.
The game commission voted on Friday, May 21, to hold a special meeting June 18 to consider the applications. The commission won’t accept public comments at the hearing and comments on the applications must be submitted by the end of business on June 4.
The permit hearing marks the latest development in the ongoing legal challenge brought by the New Mexico Wildlife Federation and other groups seeking to overturn a state’s certification program that seeks to close rivers to the public by certifying them as “non-navigable.” The NMWF and other groups hold that the program violates the state Constitution by blocking the public from accessing public waters.
The game commission had called a halt to considering landowner applications for non-navigable certifications after the NMWF, Adobe Whitewater Club and Backcountry Hunters & Anglers filed a legal challenge against the program early last year.
The New Mexico Supreme Court has yet to rule on the groups’ request to invalidate the game commission’s non-navigable rule.
In their petition, the groups emphasized that the New Mexico Constitution specifies the unappropriated water of every stream in the state belongs to the public. Whether a river is navigable makes no difference.
The groups also note in their petition that the New Mexico Supreme Court addressed the issue of public river access in its 1945 landmark case, State ex rel. State Game Commission v. Red River Valley Co. In that case, the court concluded that the public — meaning anglers, boaters or others — may use streams and streambeds where they run through private property as long as the public doesn’t trespass across private land to access the waters, or trespass from the stream onto private land.
In the years since the 1945 decision, several New Mexico attorneys general have issued opinions supporting the court ruling.
The non-navigable rule enacted by the game commission in 2018 allows landowners to petition the commission to certify that rivers and streams crossing their property are non-navigable and closed to public access without the owner’s written permission. The commission enacted the rule following passage of a state law in 2015 that purportedly enabled landowners to post “non-navigable” streams and their streambeds against trespass.
Before it called a halt to acting on applications last year, the game commission had granted five applications from out-of-state landowners certifying waters as “non-navigable” on New Mexico waterways including stretches of the Rio Chama and Pecos River.
The five additional applications pending before the commission that will be considered on June 18 are the following:
_ Canones Creek Ranch, on the Chama River and Rio Chamita in Rio Arriba County. The application states that the ranch is owned by a Texas limited liability company.
_ Fenn Farms, on the Hondo and Berrendo rivers in Chaves County. The application states that a New Mexico company owns the property.
_ Rancho de Oso Pardo, on the Chama River in Rio Arriba County. The application states the property is owned by a New Mexico company.
_ River Bend Ranch, on the Upper Pecos River in San Miguel County. The application states that a Texas company owns the ranch,
_ Three Rivers Ranch, on Three Rivers Indian Creek in Lincoln and Otero counties. The application states that a New Mexico company owns the property.
All of the entities whose applications were pending with the game commission went to federal court seeking to force the game commission to act on them.
This March, U.S. Magistrate Steven Yarbrough ruled that the landowners are entitled to game commission action on their applications.
Yarbrough ruled that the questions of public use of the rivers and streams is ultimately to be decided by the New Mexico Supreme Court in the case that’s pending before it. He said that while the challenge remains pending before the New Mexico Supreme Court, the game commission has to meet the deadlines in the rule.
At Friday’s game commission meeting, the commission voted to hear the applications at a special meeting to be held 9 a.m., June 18, at Room 322 of the New Mexico State Capitol building in Santa Fe.
All comments or proposed documentary evidence must be provided in a written format to the Office of the Director, New Mexico Department of Game and Fish, P.O. Box 25112, Santa Fe, New Mexico 87504 or by email to NonNav.Comments@state.nm.us, to allow it to be included electronically in the record. The comment period closes at 5 p.m. Friday, June 4.
Commissioner Jeremy Vesbach cast the lone vote against holding the meeting as proposed.
“I really respect and understand where the other commissioners are coming from, we’re under a court order to hold these hearings,” Vesbach said. “However, we’ve really set and I think strived for a lot of public opportunity, public input, public notice. And I’m just not comfortable supporting notice that’s less than 30 days for some very technical comments that the public will have to weigh in on.”
Vesbach also expressed concern that the rule prohibits people from giving oral testimony on the day of the hearings. He said that’s a stark departure from the way the commission typically conducts business.
Commission Chair Sharon Salazar Hickey responded that the non-navigable rule requires 21 days of public notice. She said the issue and applications have been in question for quite some time, “and it should not be a surprise for anyone.”