By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — More conservation groups are coming forward to support the New Mexico Game Commission’s recent move to suspend a program that certifies rivers and streams on some private properties are closed to public entry.
The New Mexico Chapter of the Sierra Club, The Adobe Whitewater Club of New Mexico, the New Mexico state board of the American Canoe Association and the New Mexico River Outfitters Association all recently wrote to Gov. Michelle Lujan Grisham in support of the moratorium the game commission enacted July 24.
The game commission imposed a 90-day moratorium on the New Mexico Department of Game and Fish program to certify waterways in the state as “non-navigable.” The previous game commission late last year approved five such certifications under a rule it enacted in 2017, during the administration of former Gov. Susana Martinez. The certifications purport to require members of the public to get written permission from the landowner before boating, fishing or otherwise using the waterways.
The 2017 rule followed a state law enacted in 2015 that purportedly enabled landowners to post non-navigable streams and their streambeds against trespass.
In passing the moratorium in July, the new game commission said it would buy time to allow the New Mexico Attorney General’s Office to complete its legal analysis of the “Non-Navigable Water Rule.”
Game Department Director Mike Sloane asked for the formal opinion about the legality of the rule from New Mexico AG Hector Balderas in early July. Sloane asked Balderas whether the rule comports with state land and the New Mexico Constitution.
Sloane’s request for the legal opinion followed a letter the New Mexico Wildlife Federation wrote to him and members of the newly appointed game commission in June asking them to roll back the rule.
In its request, the NMWF letter cited a 1945 ruling by the New Mexico Supreme Court and subsequent state attorneys general opinions. All the legal findings concluded that the public 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. It doesn’t matter whether the waterways are navigable, they concluded.
Joanna Prukop, game commission chair, said at the July meeting that former NMGF Director Alexa Sandoval told her the game department itself didn’t develop the rule. Rather, Prukop said Sandoval told her it was drafted by the former commission chairman, Paul Kienzle, an Albuquerque lawyer.
Officials from the Adobe Whitewater Club, the American Canoe Association and the New Mexico River Outfitters Association wrote to Lujan Grisham recently saying they support the moratorium on the rule. (Read the letter here).
“Three wealthy landowners — including two non-resident Texas — through the extensive efforts of their well-connected Republican lawyer-lobbyist and former Governor Martinez’s reactionary Game Commission — have denied New Mexicans their constitutional rights of public access to the public rivers running through five of their properties,” the officials from the boating organizations stated. (Read the letter here: River Groups’ Letter)
The boating organizations requested Lujan Grisham’s support in restoring, “public access to New Mexico’s rivers and streams, regardless of whether they are flowing through private lands.”
Teresa Seamster, chair of the Northern New Mexico Group of the Rio Grande Chapter of the Sierra Club, wrote to Lujan Grisham on Aug. 7 noting that the NM Supreme Court’s decision in 1945 stated that whether waters are navigable or not doesn’t determine whether they’re public. (Read the letter here: Sierra Letter)
“Given the extreme importance of all surface water to New Mexico’s outdoor recreationists, anglers, and boaters, the thousands of Sierra Club members in northern New Mexico, urge the Commission to adhere to the precepts of the New Mexico Constitution, and to rescind the 2017 Rule,” Seamster wrote.
Balderas and two previous New Mexico attorneys general have addressed the stream-access issue previously and concluded that the public has the right to access waterways provided it doesn’t trespass across private land to reach them or trespass from the waterways onto private land.
The late State Rep. Luciano “Lucky” Varela had asked Balderas whether a 2015 state law purporting to require the public to get permission from landowners before using streams that run across private property was constitutional.
In response to Varela, Balderas concluded that the New Mexico Constitution wouldn’t allow any interpretation of the new law, “that would exclude the public from using public water on or running through private property for recreational uses if the public water is accessible without trespassing on private property.”
Earlier opinions by former New Mexico Attorneys General Gary King and Tom Udall say essentially the same thing.
