By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — New Mexico’s two U.S. senators as well as a number of groups that promote civil rights and equal access for Hispanic Americans are asking the state supreme court to allow them to join the fight against a state rule that purports to limit the public’s right to access public waters that flow across private land.
Sens. Tom Udall and Martin Heinrich, both New Mexico Democrats, on Monday filed a request with the New Mexico Supreme Court for permission to file a “friend of the court” brief in support of New Mexicans’ right under the state constitution to access public surface waters.
In a separate filing with the court, the New Mexico Wilderness Alliance, League of United Latin American Citizens, The Hispano Roundtable of New Mexico, Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) and the Nuestra Tierra Conservation Project also ask the court for permission to file a brief in support of public stream access.
The senators and the groups are all seeking to support a legal challenge that the New Mexico Wildlife Federation, Adobe Whitewater Club and New Mexico Chapter of Backcountry Hunters & Anglers filed last month. The court hasn’t ruled yet on any requests from other parties to get involved in the case.
“The New Mexico Wildlife Federation welcomes the support of Senators Udall and Heinrich,” said Jesse Deubel, executive director of the New Mexico Wildlife Federation. “We trust that the senators’ involvement will help everyone in the state understand that this is a serious issue and that we have the law on our side.
“The federation also is deeply thankful to see support from the other groups from very diverse backgrounds who are speaking up for the public’s right to access public waters,” Deubel said. “This is an important fight that goes to the heart of our state’s history and culture. We’re happy for the help and we intend to win.”
The NMWF and the the others filed a petition March 13 asking the high court to invalidate the game commission rule that purports to allow landowners to get state certification that some rivers and streams that flow across private property are “non-navigable” and accordingly closed to public access. The groups named the game commission and Gov. Michelle Lujan Grisham as respondents.
Since the rule went into effect in 2018, the game commission has granted five applications from out-of-state landowners to certify waters as “non-navigable” on New Mexico waterways including the Rio Chama and Pecos River. At least two other applications are pending on the Rio Chama and one on the Pecos.
The New Mexico Supreme Court addressed the issue of public river access in its 1945 landmark case, State ex rel. State Game Commission v. Red River Valley Co. In that case, the court concluded that 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.
The New Mexico Attorney General’s Office filed a response last week to the lawsuit brought by the NMWF and the other groups. The response essentially said that the state supreme court will have to look to the state Constitution to resolve the lawsuit.
Lawyers for the governor filed a response to the petition last week asking that she be dismissed as a respondent. The lawyers stated that the groups bringing the case failed to specify any particular non-discretionary duty that the governor had neglected to perform.
In their court filing, Udall and Heinrich both emphasize they have a history of working on conservation issues in the state over their decades in public service. Both men say they recognize the importance of public lands and recreation to the state’s economy.
The senators state that they have “followed with concern” efforts to undermine New Mexican’s rights under the state constitution and under the 1945 state supreme court ruling to access streams and watercourses.
“This proceeding provides the Court an opportunity to enforce the public’s longstanding right of access,” lawyers for the senators wrote.
The Hispanic rights organizations and the New Mexico Wilderness Alliance say their membership offers to provide the court with historical context about the public use of waters dating back even before statehood. Among the membership of the groups, are acequia, land grant and cultural organizations that stand to offer the court a different perspective on the short- and long-term risks of the regulation.
A number of landowners who already have received non-navigability certificates from the state as well as other groups representing ranching interests have filed papers previously with the NM Supreme Court seeking permission to get involved in the lawsuit.
Some of the ranches that have applied for but not yet received “non-navigable” certifications from the game department filed another lawsuit in state district court in Santa Fe recently seeking a court order to force the department to grant the certifications. The suit also seeks damages for alleged constitutional rights violations against game commissioners individually. All three of the ranch officers who brought the lawsuit in state district court were appeared before notaries in Texas to sign off on it.