By BEN NEARY
NMWF Conservation Director
ROSWELL — The New Mexico Attorney General’s Office again has concluded that a state game commission rule can’t block the public from using rivers and streams that cross private property provided that people don’t trespass across private property to reach the waterways.
After voting six-to-one Thursday to release the AG’s latest memo, the New Mexico State Game Commission ordered NMDGF Director Michael Sloane to come up with a plan that will either to amend or repeal the so-called “Non-navigable Waters Rule.”
The commission could consider the issue again possibly as soon as its January meeting in Las Cruces, Commission Chair Joanna Prukop said. She said the commission will take whatever time is necessary to address the issue.
The previous game commission enacted the rule two years ago. It 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 rule followed a state law enacted in 2015 that purportedly enabled landowners to post “non-navigable” streams and their streambeds against trespass. The game department has approved five applications from landowners certifying waters as “non-navigable” and a few other such applications are currently pending.
The New Mexico Wildlife Federation has been lobbying against the rule this year. Jesse Deubel, NMWF executive director, and John Crenshaw, NMWF board president, wrote to the game commission this summer urging it to roll back the rule.
Crenshaw and Deubel emphasized that the New Mexico Constitution specifies that waters of the state belong 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.
Crenshaw and Deubel noted that several New Mexico attorneys general have issued opinions in recent years upholding the high court’s interpretation in the intervening years.
Assistant Attorney General John Grubesic prepared the Sept. 17 memo on the rule. He wrote the memo in response to a query from Sloane this 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.
Attorney General Hector Balderas issued a statement on Thursday saying he’s calling on the game commission “to immediately strengthen its regulations to address waterway access in compliance with state law.”
“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.”
Thursday’s commission vote to release Grubesic’s memo came one day after three members of the state’s congressional delegation wrote to commissioners congratulating them for placing a moratorium on the rule earlier this year. Commissioner Jimmy Bates cast the lone vote against releasing the AG’s memo.
Sen. Tom Udall, Sen. Martin Heinrich and Rep. Deb Haaland stated in their letter that they “care passionately about ensuring access to New Mexico’s public lands and expanding the outdoor economy.”
The senators and Haaland encouraged game commission to “continue efforts to reassert the rights of New Mexicans to access our public lands, rivers and streams.”
Commissioner Gail Cramer said only a handful of waters in the state are arguably navigable.
“In the end, I think this will be a battle between recreational privileges and private property rights,” Cramer said.
During public testimony on the rule at Thursday’s commission hearing, Lawyer Marco Gonzales spoke on behalf of landowners in Terrero who oppose the notion of allowing the public to walk up the Pecos River through their properties. He also represented a coalition of other landowners with the same concerns.
“We are not the ones that created this unrest,” Gonzales told the commission. He said the NMWF had urged the late New Mexico legislator Luciano “Lucky” Varela to seek an earlier legal opinion about the constitutionality of the 2015 changes to state law.
“The repeal of the rule would essentially be taking away the statute,” Gonzales told the commission. He urged commissioners to follow the law as it currently stands and allow the issue to be resolved by the Legislature and the courts.
Kerrie Cox Romero, with the New Mexico Council of Outfitters and Guides, told the commission it appeared that all parties agreed the issue needed to be resolved in court.
Romero said state law is otherwise clear that landowners may post their lands against trespassing and prevent others from walking up a streambed onto their property. “A repeal to this rule is not going to repeal this law,” she said, adding that rescinding the rule would gut the game department’s ability to enforce the law.
Deubel testified the NMWF believes it’s critical that New Mexicans realize that the state constitution gives them the right to fish, boat and otherwise use the waters of the state as long as they don’t trespass upon private lands.
Deubel said that although some landowners characterize the issue as an attack on private property rights, the federation believes that in fact it’s sportsmen and anglers in the state who have had their rights taken away for far too long.
Speaking outside the meeting, Deubel said Thursday he welcomes the letter from the state’s congressional representatives and hopes it fires up increased support for reclaiming the public’s right to use the waters of the state.
In their letter this week, Udall, Heinrich and Haaland stated, “Communities across New Mexico recognize that outdoor recreation supports health, contributes to quality of life and attracts and sustains employers and families. Our public lands and waters are where locals and visitors alike go to find the biggest elk, the best camping spot, the most challenging single track, or the greatest fishing hole. According to the Outdoor Industry Association, the recreation economy supports 99,000 direct jobs and $2.8 billion in wages in New Mexico. Ensuring the public’s access to our land and water ensures our communities thrive economically and socially.“
Several other conservation groups have joined the NMWF fight to roll back the “Non-navigable Waters Rule” recently. Among them are Backcountry Hunters and Anglers, New Mexico Avid Anglers, Dona Ana County Associated Sportsmen, Southwest Consolidated Sportsmen, Wild Turkey Sportsmen’s Association, River Reach Foundation, Adobe Whitewater Club, American Canoe Association, American Whitewater and the New Mexico River Outfitters Association.
The effort to roll back the rule also has attracted the attention of several national sporting goods companies.
Hans Cole, director of environmental campaigns and advocacy with Patagonia, Inc., wrote to Gov. Michelle Lujan Grisham last month.
“A cornerstone of our culture and our outdoor recreation economy, this right has been upheld in the New Mexico Supreme Court,” Cole stated. “We expect that the commission’s decision will be challenged and that the battle for public access will continue. We look to you now to continue to support the commission’s mandate to protect and enhance fish, wildlife, and public lands and waters for the benefit and enjoyment of New Mexico’s citizens.”