By Ben Neary
NMWF Conservation Director
New Mexico Attorney General Raúl Torrez is expanding his office’s legal fight against landowners along the Pecos River who continue to block public access to the water.
Torrez’s office, the New Mexico Department of Justice, this week asked a state district court judge to require landowner Erik Briones to show cause why he shouldn’t be held in contempt.
The NMDOJ filed a lawsuit against Briones last year alleging that he had threatened members of the public who tried to use the river where it crossed his property. Briones has fenced his property upstream from the Village of Pecos with concertina wire and erected signs that falsely state anyone using the river would be subject to prosecution.
Early this year, Briones entered a legal agreement before a state district court judge. He pledged to remove obstacles preventing the public from fishing and boating on the Pecos River. Briones also agreed to quit threatening people using the river and to remove signs that falsely stated that public use of the river wasn’t allowed.
The NMDOJ this week amended its lawsuit to name two more landowners, Richard and Jean Jenkins. The lawsuit asserts that they are improperly blocking the public from accessing the Pecos River.
“Today’s legal action underscores our unwavering commitment to safeguarding the public’s right to access New Mexico’s streams and waterways,” said Attorney General Torrez.
“Despite our attempts to educate and inform the defendants, they have chosen to ignore the law and continue obstructing public access to the Pecos River,” Torrez said. “Mr. Briones, who previously agreed to a consent decree, is now flagrantly violating that agreement, leading us to seek a contempt order against him. By filing this amended lawsuit, we are sending a clear message: We will not tolerate violations of the law, and we will continue to fight for the rights of all New Mexicans to enjoy their natural resources.”
The NM Supreme Court in 2022 issued a ruling reaffirming the longstanding right of the public to use public water. The court emphasized that members of the public may not trespass across private lands to reach the water, nor trespass from the water across private property.
The 2022 New Mexico Supreme Court ruling came in response to a legal challenge brought by the New Mexico Wildlife Federation, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. The groups had challenged a regulation adopted by the New Mexico State Game Commission that went into effect in 2017. That regulation purported to allow landowners to close streams over their properties to public access once the commission certified they were non-navigable.
“We hold that the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right,” the New Mexico Supreme Court stated in its unanimous opinion.
The U.S. Supreme Court declined to hear a challenge brought by two New Mexico landowners who argued that the state court ruling amounted to an uncompensated taking of their property right to exclude the public from rivers and streams that cross their land.
Briones and other landowners filed a lawsuit in federal district court in New Mexico in June. They assert that state action to force to allow public access to rivers and streams amounted to an uncompensated government taking of their property.
The NMDOJ has asked the federal court to dismiss the landowners’ new federal lawsuit, saying the federal court lacks authority to overturn the NM Supreme Court decision. The NMDOJ also said landowners have never had the right to exclude the public from rivers and streams, so the state court order didn’t deprive them of anything.
“The New Mexico Wildlife Federation deeply appreciates the commitment of Attorney General Raúl Torrez and his staff to force private landowners to remove barriers to the public’s use of the Pecos River and all public waters in the state,” said Jesse Deubel, executive director of the NMWF.
“The AG’s bold work on this important issue stands in stark contrast to the inaction and outright opposition to following the clear orders of the New Mexico Supreme Court shown by the New Mexico State Game Commission and other elements of state government,” Deubel said. “The game commission and the New Mexico Department of Game and Fish were quick to try to block the public from public waters. But now that the state Supreme Court has ruled their actions broke the law, they persist in saying that they’re powerless to act to help the general public.”
Norm Gaume, stream access chair of the New Mexico Paddlers Coalition, said his group applauds Torrez for enforcing the New Mexico Supreme Court’s unanimous decision.
Scott Carpenter, president of the Adobe Whitewater Club of New Mexico, also thanked Torrez for enforcing the public’s constitutional right to access rivers and streams in the state.
The NMDOJ will continue to investigate any other property owners that are violating this constitutional right. Anyone may file a complaint regarding stream obstructions at https://nmdoj.gov/get-help/.