By BEN NEARY
NMWF Conservation Director
A private landowner who has blocked public access to the Pecos River has entered an agreement with the New Mexico attorney general to remove all barriers and signs and refrain from threatening physical violence against people who fish, boat or otherwise recreate on the water.
In a consent decree filed in New Mexico District Court in Las Vegas on Wednesday, landowner Erik Briones agreed to remove all fences and other obstacles that interfere with public access by May 24. He also agreed to remove signs that have threatened prosecution for anyone using the river.
The consent decree was approved by State District Judge Flora Gallegos. It states that the court will continue to have control over the case and that any violation of the agreement could incur penalties for contempt of court.
Attorney General Raúl Torrez filed a complaint against Briones and ten other unnamed landowners on the Pecos River in October. In the complaint, the state alleged that Briones’ threats of violence, physical barriers on the river and false threats of prosecution were all violations of the state constitution.
An attempt to reach Briones for comment Thursday through one of his business locations was not immediately successful.
Other unnamed landowners who are blocking public access on the Pecos River may enter similar agreements soon under the lawsuit. If any refuses, the AG’s office could proceed with legal action against them under the same complaint.
“We are encouraged by the fact that the first named defendant in our lawsuit has signed a binding agreement to remove fences along the Pecos River and hope that this victory will prompt other landowners to come into compliance without further legal action,” Torrez said Thursday.
“I know that we still have a long way to go, but the New Mexico Department of Justice remains committed to protecting the public’s constitutional right to access our rivers and streams,” Torrez said. “And we will dedicate the resources necessary to carry on this fight for as long as it takes.”
Torrez’s office undertook the enforcement action following a unanimous 2022 ruling by the New Mexico Supreme Court reaffirming the longstanding right of New Mexicans to walk or wade on the streambeds of water that flows over privately owned lands for fishing or other recreation. The court also made it clear that the public has no right to trespass over private lands to reach the water.
“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 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 purported to allow landowners to close streams over their properties.
The United States Supreme Court in early 2023 declined a request from some landowners who have fenced off public waters to reconsider the state court ruling.
“The New Mexico Wildlife Federation welcomes this agreement to ensure public access to the Pecos River,” John Crenshaw, president of the NMWF board of directors, said Thursday.
“The federation applauds AG Torrez and his staff for standing up for the people of the state,” Crenshaw said. “The courts have spoken and it’s clear that private landowners have no right to fence off public waters in New Mexico.”
Last September, the Adobe Whitewater Club and the New Mexico Paddlers Coalition submitted a complaint to Torrez’s office documenting that landowners continued to block the rivers despite the court order. The groups’ complaint detailed locations on the Pecos River and on the Chama River where landowners had installed cables and other barriers.
Torrez visited the Pecos River in October to announce his office’s legal action against Briones and the other unnamed landowners.
“The New Mexico Supreme Court correctly interpreted our state constitution and ruled that wealthy landowners cannot erect barriers to prevent anglers and others from walking, wading, or floating on the riverbed. While we respect the private property rights of landowners along these waterways, we expect them to follow the law and take down illegal barriers that restrict access to natural resources that belong to all of our citizens,” Torrez said in October.
The consent decree with Briones notes that the public does not have the right to trespass across his property to reach the river nor to trespass from the river onto his property. The public may use the river bed and banks to the extent reasonably necessary to access the public water to fish and recreate.
Under the agreement, fencing may be constructed that will prevent cattle from passing while still allowing safe passage for boaters, anglers and the public. Such fencing often consists of lengths of PVC pipe hanging at close intervals from a cable over the river. The pipes move freely out of the way when people pass under them.
The consent decree states that Briones could construct such boater/angler-friendly fencing without violating the terms of the agreement.