By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — The director of the New Mexico Department of Game and Fish has asked the state courts to resolve whether landowners may block the public from accessing streams and rivers that flow across private property.
Michael Sloane, NMDGF director, on Wednesday filed a complaint for declaratory judgment in state district court in Santa Fe. The lawsuit names the New Mexico State Game Commission as respondent.
Top lawyers on Gov. Michelle Lujan Grisham’s staff are representing Sloane. Attempts to reach the lawyers and and a spokesman for the governor were unsuccessful Wednesday.
The lawsuit is the latest development in the increasingly contentious issue of whether the public has a right to access New Mexico rivers and streams that flow through private property.
Sharon Salazar Hickey, chair of the game commission, announced the lawsuit Wednesday morning at the commission meeting in Albuquerque. She said the New Mexico Attorney General’s Office would represent the commission and said the commission wouldn’t comment on it. Sloane also declined comment Wednesday.
The previous game commission enacted a rule two years ago that purports to allow landowners to petition the game department to certify streams and other waters on private property as “non-navigable” and accordingly closed to public access without the owner’s written permission.
The game commission has granted five applications from landowners certifying waters as “non-navigable” while a few other such applications are pending. Some landowners who have received such certifications have strung fences across rivers that recreational boaters say pose serious hazards.
The commission rule followed a state law enacted in 2015 that purportedly enabled landowners to post “non-navigable” streams and their streambeds against trespass.
The New Mexico Wildlife Federation has been lobbying against the so-called “non-Navigable Waters” rule since it was enacted. Jesse Deubel, NMWF executive director, and John Crenshaw, NMWF board president, wrote to the game commission last summer urging it to roll back the rule.
In their comments, the NMWF officials have emphasized that the New Mexico Constitution specifies that all waters of the state belong to the public. They also pointed to a 1945 ruling by the New Mexico Supreme Court that found 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 its ruling, the New Mexico Supreme Court noted that the public right to access waters has existed from the days of Indian rule on through Spanish and Mexican law. Public ownership of water is likewise enshrined in the the New Mexico State Constitution, the court noted.
Crenshaw and Deubel noted that several New Mexico attorneys general have issued opinions upholding the high court’s interpretation in the intervening years.
Last summer, following the complaints from the NMWF and other groups, the game commission imposed a moratorium on acting on applications from landowners seeking “non-Navigable” status for waterways on their property.
Last fall, the game commission voted to release a memo from then-Assistant Attorney General John Grubesic. He wrote the memo in response to a query from Sloane last summer asking whether the “Non-navigable Waters Rule” passed constitutional muster.
Grubesic stated in his memo that although other states rely on the “test of navigability” to determine whether waterways are open to the public, that measure doesn’t apply in New Mexico. He stated that any language in the rule which attempts “to prohibit access to the public waters of New Mexico” is unconstitutional and unenforceable.
However, the day the game commission released Grubesic’s memo, Attorney General Hector Balderas issued a statement that seemingly undercut it.
“New Mexican families and landowners deserve access to our waterways while protecting the safety of their property,” Balderas stated. “So I will be directing the commission to strengthen the process to protect private property rights and minimize trespass, while respecting access rights and outdoor activities of sports enthusiasts.”
At the end of 2019, Gov. Michelle Lujan Grisham failed 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 Lujan Grisham removed her from the commission because Prukop had orchestrated the commission’s moratorium of the “non-Navigable rule.”
Repeated attempts to reach Lujan Grisham for an explanation of why she didn’t reappoint Prukop have been unsuccessful.
Sloane is represented in the lawsuit filed Wednesday by lawyers Matthew L. Garcia and Jonathan J. Guss, the chief counsel and deputy counsel to the governor. The lawyers list the governor’s office as their address on Wednesday’s legal filing but don’t specify that they’re on the governor’s staff.
An attempt to reach a spokesman for the governor for comment wasn’t immediately successful on Wednesday,
In the court filing, Garcia and Guss stated that “given the lack of clear legal guidance as to whether landowners may lawfully exclude members of the public from accessing waterways flowing through private property, (Sloane) has been placed in the untenable position (of) enforcing competing and undefined legal rights.”
Garcia and Guss ask the court to resolve the legal question, “of whether, and under what circumstances, a private landowner may exclude members of the public from fishing in public waterways that flow through that landowner’s property.”