By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — New Mexico’s two U.S. senators are speaking up in support of the public’s right to access public waters including those that flow across private land.
Sens. Tom Udall and Martin Heinrich, both New Mexico Democrats, issued a statement Thursday in support of New Mexicans’ right under the state constitution to access public surface waters.
“The New Mexico Constitution ensures that rivers, streams, and lakes in New Mexico ‘belong to the public,'” the senators said in their statement. “And, for 75 years, the New Mexico Supreme Court has recognized the public’s right to recreate, fish, and use these waters, including waters that flow through private lands. We support that right.
“The state constitution makes clear that the water of every natural stream belongs to the public; it doesn’t distinguish between ‘navigable’ and ‘non-navigable’ waters,” the senators stated. “However, in 2017, in the final days of the Martinez administration, the State Game Commission passed a rule allowing landowners to prohibit public access to waters flowing on their lands if the waters are ‘non-navigable.’ Not only is that contrary to our constitution, it also impacts the vast majority of New Mexico’s streams, the majority of which – whether they flow all the time, intermittently, or just in response to rain events – are not ‘navigable’ and could be kept off limits to the public.
“The commission’s rule has upended anglers’, boaters’, and other recreationists’ right to access public streams, putting a halt to activities that have long been enjoyed by New Mexicans throughout the state, and drawn visitors from both near and far, contributing to our outdoor recreation economy,” the senators stated.
“We are long-time advocates for preserving New Mexico surface waters for recreational, wildlife, and environmental uses, and support legal interpretations of past New Mexico Attorneys General affirming the importance of our public waters,” the senators said. “In 1998, when Udall was New Mexico’s Attorney General, he issued an opinion affirming that ‘instream flows’ for recreational, fish or wildlife, or ecological use were entitled to legal protection as a valid water right. In 2014, then-Attorney General Gary King issued an opinion affirming the public’s right to fish and recreate in waters that flow on private lands, as well as landowners’ rights against trespassing on their lands.
“The rule is before the Game Commission, and we urge that body to follow the constitution, New Mexico Supreme Court precedent, and prior Attorney General opinions, and repeal the rule,” the senators said. “If not, lawsuits are already filed putting the rule’s legality before the New Mexico courts. If forced to decide, we hope the courts continue to give life to the state constitution and our proud tradition of protecting public access to public waters. New Mexicans have always understood agua es vida, water is life. We know how vital managing this precious resource is to preserving our economy, our environment, and our traditional approaches, many of which have been in place since before statehood. Whether through the courts or not, we must all reaffirm that New Mexico’s rivers, streams, and lakes belong to the public.”
The game commission has granted five applications from out-of-state landowners certifying 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 Wildlife Federation, the Adobe Whitewater Club and the NM Chapter of Backcountry Hunters & Anglers 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.
“We’re thrilled to see New Mexico Senators Udall and Heinrich speak up for the rights of New Mexicans to access public waters,” said Jesse Deubel, executive director of the New Mexico Wildlife Federation.
“We’re confident that the senators’ support will force many in New Mexico to look at this issue carefully and ultimately will help everyone in the state exercise their rights to use public water for fishing, boating and recreation,” Deubel said.
The New Mexico Attorney General’s Office filed a response on Monday 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 on Monday 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.
On Friday, a number of landowners who already have received non-navigability certificates from the state as well as other groups representing ranching interests filed papers with the NM Supreme Court seeking permission to get involved in the lawsuit. The New Mexico Wildlife Federation and other plaintiffs are opposing the groups’ effort to get into the case while the governor and the attorney general didn’t object.
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 last week 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.