By BEN NEARY
NMWF Conservation Director
The New Mexico Supreme Court on Tuesday unanimously decided that a state game commission rule purporting to allow landowners to limit access to public waters is unconstitutional and void.
The court ruled 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.
Santa Fe lawyers Gene Gallegos and Seth Cohen represented the groups at Tuesday’s court hearing. They emphasized that the rule violates the New Mexico State Constitution’s guarantee that the unappropriated waters of the state belong to the public.
In their arguments on Tuesday, Gallegos and Cohen pointed out that the New Mexico Supreme Court already addressed the issue of the public right to access the waters of the state in its 1945 landmark case, State ex rel. State Game Commission v. Red River Valley Co.
In the Red River case, the court concluded that the public — meaning anglers, boaters or others — may 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 court noted that under Indian, Spanish and Mexican law that governed New Mexico before statehood, everyone had the right to fish in streams.
Since the game commission rule went into effect in 2018, the commission has granted five applications from out-of-state landowners to certify waters as “non-navigable” on New Mexico waterways, including stretches of the Rio Chama and Pecos River. After securing the certifications, landowners have denied public access to the waters, in some instances placing fences across the rivers that prevent boating access.
After hearing arguments in the case on Tuesday, the supreme court justices took a short recess before returning to the courtroom to announce that they were unanimous in finding that the rule is unconstitutional and that the “non-navigable” certificates that the game commission had issued to landowners are void. The court will issue a written opinion spelling out its legal findings.
The state game commission voted late Tuesday afternoon to repeal the certification rule as a result of the court ruling.
Representatives of the groups that brought the legal challenge said they were heartened to see the court roll back the rule and stand up for public access:
“The decision by the New Mexico Supreme Court confirms what the New Mexico Wildlife Federation has been saying for years, that allowing private landowners to restrict public access through rivers where those rivers cross private land is a violation of a right reserved to us by our New Mexico State Constitution,” said Jesse Deubel, executive director of the NMWF.
“The privatization of publicly owned natural resources seems to be an increasing threat across the West,” Deubel said. “From access to public lands and waters to the increased push to privatize wildlife, these violations of the Public Trust Doctrine are unacceptable and cannot be tolerated.”
Joel Gay, policy chair for NM Backcountry Hunters & Anglers, called the decision great news for anglers, boaters and others who use public waters in New Mexico. But he said it shouldn’t be a surprise.
“In 1945 the Supreme Court said the same thing – that these waters throughout the state are for everyone to enjoy for recreational use,” Gay said. “We don’t know how that constitutional right got lost, but for decades we have been told otherwise. Our chapter thanks the Supreme Court for setting the record straight — again.”
Scott Carpenter, president of the Adobe Whitewater Club, said New Mexico’s rivers and streams are rare and precious resources that all New Mexicans are entitled to enjoy.
“This access is part of New Mexico’s heritage,” Carpenter said. “The New Mexico Supreme Court unanimously ruled today that the public has a long-standing constitutional right to recreational uses of these rivers and streams. That right includes contact with the streambed and banks that is incidental to recreational use of the water. The court ruled it is unconstitutional for private landowners to fence the public out.”
Robert Levin, New Mexico state director of the American Canoe Association, said, “A handful of landowners do not have the exclusive right to the recreational and economic benefits of public streams flowing across private property. They cannot monopolize the public resource for their exclusive benefit.”
Steve Harris, director of the New Mexico River Outfitters Association, said, “I’m thankful that the game commission rule will no longer be a barrier to our state’s policy of developing a robust river-touring component to our outdoor recreation economy.”
Sen. Martin Heinrich, D-N.M., issued a statement applauding the court ruling. He and former U.S. Sen Tom Udall had filed a “friend of the court” brief in support of overturning the commission rule.
“Today is a pretty exciting day in New Mexico history,” Heinrich said. “Our state supreme court reaffirmed the constitutional rights of New Mexicans to their public waters. This is a huge victory for people who care about our history, our culture and our natural resources, and I want to thank everyone who made this possible to make sure that public waters stay in public hands.”
Groups representing ranchers and landowners had intervened in the case to argue in support of the rule. Lawyer Jeremy Harrison represented the groups at Tuesday’s hearing, saying that the public has a right to float on rivers and streams that cross private lands, if they can, but not to get out and recreate. He said the “incidental touching” of an oar on the streambed would be permitted.
Justice C. Shannon Bacon questioned Harrison about his position.
“What about a fly fisherman, walking down the stream, casting a fly — which people do in New Mexico pretty regularly?” Bacon asked. “Is incidental touching in your definition walking down the streambed that is now deemed private by application of this rule?”
Harrison replied that it was not. “At that point, your touching of the land is not incidental to your use of the waters,” he said.
Bacon responded, “That’s a stretch. If you can’t walk on the streambed, and your use and enjoyment protected by the constitution – being your ability to fly fish – unless you can figure out how we can all walk on water – how is that not contrary to the public use and enjoyment of the public water?”
Harrison responded that the constitutional ownership of the water, and the use of the water, is not unlimited. “There’s a balance here, because the right to own property is a fundamental protected right, guaranteed by the federal and state constitutions,” he said.
Chief Justice Michael Vigil questioned Cohen about what constitutes a permissible recreational use.
Cohen responded that the public has to be engaged in a reasonable recreational use of the water. He said that carries with it the incidental right to touch the streambed and the bank.
“It’s important also for the court to articulate what has necessarily been true throughout the course of New Mexico history, which is the public’s constitutional right to make recreational use of the public waters includes the incidental right necessarily to touch the streambed and bank as necessarily to effectuate recreational use,” Cohen said.
Aaron Wolf, lawyer for the game commission, said the current game commission has no intention of using the rule to certify more stretches of water. The commission last summer rejected five pending applications from landowners seeking to have waterways over their property declared non-navigable and closed to the public.
Gov. Michelle Lujan Grisham has removed two game commissioners since the beginning of her term. Both former commissioners, Joanna Prukop and Jeremy Vesbach, have said they believe the governor targeted them at least in part because they expressed opposition to granting landowner applications under the non-navigable rule. Some of the landowners have made campaign contributions to the governor.
Prukop was removed as commission chair in late 2019 after the commission voted to impose a moratorium on acting on pending applications.
Landowners later went to federal court and secured a court order forcing the commission to act on their applications. Vesbach led the commission’s rejection last summer of the five pending applications. Lujan Grisham removed him from the commission early this year.
Prukop said Tuesday she felt absolutely vindicated about what she tried to do as commission chair by the court ruling.
“Today is a wonderful day for state constitutional law in New Mexico,” Prukop said.