By BEN NEARY
NMWF Conservation Director
FARMINGTON – The New Mexico Attorney General’s Office is ready to take action against private landowners who block public access to rivers and streams that cross their property, a top lawyer for the agency told state lawmakers on Monday.
James Grayson, chief deputy attorney general, testified before the Legislature’s Water and Natural Resources Committee in Farmington.
“We have investigators who are ready to respond to complaints about blocking public access to waters on private land, whether through fences or other obstructions, and we will be investigating any limitation on public access,” Grayson said.
The New Mexico Supreme Court last September issued a ruling 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 Supreme Court of the United States early this year declined to hear arguments from landowners who claimed the state court ruling amounted to an impermissible government taking of their property.
Despite the court rulings, many private landowners continue to block public access with barbed wire fences and no-trespassing signs over New Mexico rivers, including the Pecos and Chama – popular boating and fishing areas.
In its ruling, the New Mexico Supreme Court emphasized that the public can’t trespass across private land to reach the waters, and can’t trespass from the waters onto private land. It stated that the public’s right to use waters that cross private land is spelled out in the state Constitution and has its roots in New Mexico law from previous Native American, Spanish and Mexican law.
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 game commission regulation that went into effect in 2017 that purported to allow landowners to get commission certificates to close streams over their properties.
Before the court ruling ending the program, the game commission had issued five certificates to private landowners asserting that waters on their lands were private, including stretches of the Pecos and Chama rivers. Other applications were pending.
Several of the landowners who received the certificates have ties to Texas and had donated to Gov. Michelle Lujan Grisham’s political campaigns.
Jesse Deubel, executive director of the NMWF, testified to the committee on Monday. He submitted photographs to the committee showing barbed-wire fences, no-trespassing signs and other obstacles that are still standing across rivers in the state. He said these could be life-threatening to boaters who may become entangled in them.
“It’s very frustrating that it took three, local nonprofit organizations – local nonprofits – to file a lawsuit in the New Mexico Supreme Court against the state game commission to uphold the state constitution, which they take an oath to uphold when they become appointed to the commission,” Deubel said.
Deubel said that when game commissioners have tried to uphold the state constitution, Lujan Grisham has removed them from the game commission.
Former Commission Chair Joanna Prukop and former Vice Chair Jeremy Vesbach both have said that Lujan Grisham removed them from the commission because they opposed the commission’s water-privatization program.
Deubel said his office gets inundated with emails and other queries from members of the public complaining that public waters remain closed despite the court rulings. Deubel said he can’t advise people to cut fences across rivers, but questioned why he’s the one getting the phone calls.
“Where’s the leadership from the state,” Deubel asked. “Where’s the leadership from our state game department, from our state game commission and from our governor? That’s what I’m here to ask today. We know what the law is. It’s not being enforced, and that needs to change.”
Mike Sloane, director of the New Mexico Department of Game and Fish, told lawmakers he believes the Legislature needs to provide more direction for how his agency is supposed to deal with the situation.
While the court ruling states that the public has the right to use public waters that cross private property, Sloane said he doesn’t know what to tell his officers about what’s reasonably necessary for the public to enjoy that right. He questioned whether it’s permissible for people to go 1 foot onto the bank of a river or a stream, or 5 feet or 100 yards.
“Between the commission not really having the authority to promulgate regulations, and the sort of murky nature of the ‘reasonably necessary’ language, I think there’s additional legislative action that needs to be taken regarding what is the stream-access right,” Sloane told lawmakers.
Committee Vice Chair Rep. Matthew McQueen, D-Galisteo, told Sloane he sees the issue before the committee as how the state is going to enforce the public’s right to access public waters. He told Sloane that the game department and the game commission largely created the current problem.
McQueen noted that Sloane said his officers couldn’t enforce the court ruling because they couldn’t say if people have the right to go a certain distance onto the river bank. But McQueen asked Sloane if it would require any legal interpretation to understand that a fence across a river blocks public access.
Sloane noted that the regulation was promulgated under a previous administration. “There are valid reasons to put a fence across a stream,” he said. “We’re a fence-out state.”
State law requires landowners to put up fences to keep livestock off their property.
Grayson told the committee that no landowner may block public access to a river or stream. “There has to be access,” he said. “ And anytime access is limited, the attorney generals’ office will respond,” he said.
Sen. Antoinette Sedillo Lopez, D-Bernalillo, told Sloane that the Legislature generally doesn’t get into the details of setting regulations such as how many feet up the river bank a person may go. “I’m a little taken aback, I guess, that you want us to get into that level of detail,” she said.
Sedillo Lopez told Sloane that saying his agency doesn’t have authority over fences doesn’t address his agency’s overall authority and responsibility to address the matter. “This is an area where you could take leadership,” she said. “I think this is an opportunity for the department to take some leadership.”
Speaking after the meeting, Deubel said the NMWF is grateful that New Mexico Attorney General Raúl Torrez and his staff recognize the importance and urgency of addressing the stream-access issue and are prepared to take action on behalf of the public.
Deubel said he would encourage anyone who encounters an improper barrier to accessing public water to file a complaint with the Attorney General’s Office.
“Laws that govern the public’s access to publicly owned natural resources need to be enforced equally without regard to how big someone’s checkbook is, or who the recipient of those checks is,” Deubel said.
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