By Ben Neary
NMWF Conservation Director
A group of New Mexico landowners has filed a federal lawsuit challenging the public’s right to fish and recreate on rivers and streams that cross private land.
The landowners filed suit June 25 in U.S. DIstrict Court in Albuquerque. Represented by the conservative Pacific Legal Foundation, the landowners’ lawsuit names as defendants the state attorney general, members of the state game commission and the director of the New Mexico Department of Game and Fish.
The landowners are asking the federal court to block state officials from taking any action that prevents the landowners from excluding the public from using rivers and streams that cross their private lands.
The landowners assert that a 2022 ruling by the New Mexico Supreme Court, and subsequent state actions to open rivers and streams to public access, violate the landowners’ right to exclude people from their private property and violate their constitutional right to be compensated for any government taking of their private property rights.
In its 2022 ruling, the New Mexico Supreme Court reaffirmed the public’s right to fish, boat and otherwise recreate on rivers and streams that flow over private land. 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 court ruling, following a similar ruling by the court in 1945, noted that the New Mexico State Constitution specifies that all waters in the state are public. The public’s right to access the waters traces back through statehood, territorial times and through Mexican, Spanish and Indian rule, the court rulings noted.
The court ruling held that there was no issue of taking of landowners’ property involved in reaffirming the public’s right to access the waters of the state because landowners have never possessed the right to exclude people from using 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 regulation purported to allow landowners to close streams over their properties to public access once the commission certified they were non-navigable.
The United States Supreme Court in early 2023 declined a request from some other landowners who had fenced off public waters to reconsider the state court ruling. Those landowners also raised the claim that the state court action amounted to an uncompensated taking of private property.
Lauren Rodriguez, spokeswoman for NM Attorney General Raul Torrez, issued a statement in June in response to the new federal court challenge.
“We had hoped that property owners who are privileged enough to own land along New Mexico’s rivers and streams would abide by state law and work with us to allow everyone to enjoy these natural resources. Instead they’ve decided to file a frivolous lawsuit in federal court based on a legal argument that the United States Supreme Court has already declined to hear,” Rodriguez said.
“In spite of this short-sighted and selfish act, the citizens of this state may rest assured that the New Mexico Department of Justice will continue to fight for the public’s constitutional right to access these precious natural resources,” Rodriguez said.
One of the landowners bringing the new lawsuit is Erik Briones, who has fenced off a portion of the Pecos River upstream from the Village of Pecos.
In response to a lawsuit filed by the NM Attorney General’s Office, Briones in March entered into an agreement with the state to remove all barriers and signs and refrain from threatening physical violence against people who fish, boat or otherwise recreate on the Pecos River. Under the agreement, he was to have removed 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 Briones 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.
Joanna Prukop, former head of the New Mexico State Game Commission, has said that Gov. Michelle Lujan Grisham removed her from the commission in late 2019 because she presided over the commission’s push to repeal or amend the “non-navigable” regulation enacted by the previous game commission.
Since the recent New Mexico Supreme Court ruling, several state lawmakers and conservationists have criticized Lujan Grisham for failing to take any steps to implement the court order and direct the game department or other state agencies to facilitate public access to rivers and streams that cross private land.
In March, Lujan Grisham appointed Richard Stump to a vacancy on the game commission. Stump, now commission chairman, is hunt manager on the Trout Stalker Ranch, south of Chama.
The Rio Chama flows over the Trout Stalker Ranch, which is owned by Dan Perry, a lawyer originally from Texas. As Perry has worked to try to block public access to public water in recent years, he and his relatives have made substantial political contributions to Lujan Grisham.
Perry was one of the two ranch owners with ties to Texas who unsuccessfully asked the U.S. Supreme Court to block the New Mexico Supreme Court ruling upholding the public’s right to use public water.
Prukop traveled to the Pecos River in late June and reported that the barriers on Briones’s property were still standing, blocking public access to the Pecos River.