ALBUQUERQUE – A coalition of conservation groups is asking the New Mexico Supreme Court to invalidate a state game commission rule that purports to allow landowners to block the public from accessing rivers and streams that flow across private property.
The groups filed their petition on Friday, March 13. They’re asking the court to invalidate the New Mexico State Game Commission’s “non-navigable waters rule.”
The groups involved are the New Mexico Wildlife Federation, Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. They’re represented by Santa Fe lawyer Gene Gallegos, himself a boater and trout fisherman.
The game commission enacted the rule in 2018. It allows landowners to petition the commission to certify that rivers and streams crossing their property are non-navigable and accordingly 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.
The game commission so far has granted five applications from out-of-state landowners certifying waters as “non-navigable” on New Mexico waterways including the Rio Chama and Pecos River. At least two other applications are pending on the Rio Chama and one on the Pecos.
In their petition, the groups emphasize 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 emphasize 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 fish, float or otherwise 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.
For example, Assistant Attorney General Stephen R. Farris authored an opinion in 2014, issued by then-AG Gary King, that stated in part, “The public right to use public waters for fishing includes activities that are incidental and necessary for the effective use of the waters. This includes walking, wading and standing in a stream in order to fish.”
Current NM Attorney General Hector Balderas’ office issued a letter to the New Mexico State Game Commission on the stream access issue last fall. The letter concluded that any language in the game commission’s non-navigable rule that attempted to prohibit access to the public waters of New Mexico is unconstitutional and unenforceable.
Michael Sloane, director of the New Mexico Department of Game and Fish, represented by top lawyers on the staff of Gov. Michelle Lujan Grisham, filed a lawsuit against the game commission in state district court in Santa Fe on March 4 asking the court to declare whether, and under what circumstances, a landowner may prohibit members of the public from accessing waterways that flow through the landowner’s property.
The game commission, which is Sloane’s employer, is being represented in responding to Sloane’s lawsuit by lawyers with the NM Attorney General’s Office. That puts the AG’s Office in the position of defending the commission rule despite its history of weighing in against it.
The groups’ lawsuit asks the high court to find that the commission rule is invalid and unenforceable.
“This is a critical issue to New Mexico anglers and the population at large,” said NMWF Executive Director Jesse Deubel. “The New Mexico Constitution clearly specifies that the waters of the state belong to the public and the public has the right to use them for fishing, boating and other recreation.
“For far too long, private landowners have succeeded in blocking the public from the use of a vitally important public resource,” Deubel said. “The New Mexico Wildlife Federation is committed to changing that. While some landowners are quick to assert that this is an attack on private property rights, the reality is that they have deprived the public of its right to use public waters for decades.”
Scott Carpenter, president of the Adobe Whitewater Club, said his group is committed to maintaining public access to rivers and streams. The group’s bylaws state that one of its objectives is to “encourage the safe usage of our rivers by all and to work for the continued availability of rivers for recreational uses.”
Carpenter said he personally hopes to, “continue to paddle through any New Mexico waterway, even seasonal runoff and released flows, as a recreational kayaker seeking personal challenges and the exploration of nature, all without inflicting any harm to others or any damage to their on-shore interests.”
Joel Gay, spokesman for the New Mexico Chapter of Backcountry Hunters & Anglers, said the group is joining in the lawsuit because it wants to see the state follow its own laws.
“For as long as anyone can remember, New Mexico anglers have been prohibited from using miles of streams that our state constitution says should be open to all,” Gay said. “Seventy-five years after our state Supreme Court ruled that anglers and boaters had a right to use any stream in the state for recreational purposes, there are still barbed wire fences across our rivers and no trespassing signs along the banks.”
Gay said his group believes the current New Mexico Supreme Court will reach the same conclusion as the court did in 1945, “that the public owns these waters and has the right to use them for recreational purposes so long as we don’t trespass to reach them or leave them. We are proud to be part of this coalition fighting for access to public lands and waters, wherever they are.”
The New Mexico State Game Commission has been struggling with conservation groups’ concerns about the non-navigable rule since Lujan Grisham took office last year.
Late last year, Lujan Grisham opted not to re-appoint Joanna Prukop as chair of the game commission. Prukop, a career wildlife manager with extensive experience in state and federal government, has said she believes the governor removed her from the commission because Prukop had orchestrated the commission’s moratorium of the “non-navigable rule” and took actions to open the rule for review.
Click here to review the lawsuit.