By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — The New Mexico Wildlife Federation is pushing state authorities to follow the clear language of the State Constitution and take steps to recognize that rivers, streams and other waters of the state remain open to the public.
“For far too long, our lawmakers and our game commissioners have sided with private landowners intent on fencing the public away from our most precious public resource: our waters,” said John Crenshaw, president of the NMWF board. “It’s time for that to change and the federation is committed to seeing it happen.”
Crenshaw and Jesse Deubel, executive director of the NMWF, wrote to the State Game Commission last week urging it to roll back a rule that previous commissioners enacted two years ago. That 2017 rule purports to allow landowners to petition the New Mexico Department of Game and Fish 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 2017 rule followed a state law enacted in 2015 that purportedly enabled landowners to post non-navigable streams and their streambeds against trespass.
The Game and Fish website shows the department has accepted five applications from landowners requesting the department certify waters as “non-navigable.”
The New Mexico Wildlife Federation letter, which also went to Game Department Director Michael B. Sloane, cites a 1945 ruling by the New Mexico Supreme Court. The court found 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 court ruling, in the case titled State Game Commission versus Red River Valley Co., held that Conchas Dam Reservoir was open to public fishing even though the land around the lake was private.
The court’s majority opinion stated that the issue of whether waters are navigable doesn’t determine whether they’re public. Rather, the opinion notes that the New Mexico Constitution stated that waters in every natural stream, whether perennial or torrential, belong to the public. And the court noted that under Indian, Spanish and Mexican law that governed New Mexico before statehood, everyone had the right to fish in streams.
The court ruled that people have a right to fish, float or otherwise use streams and streambeds where they pass through private property as long as they don’t trespass across private land to reach the waters or trespass on private lands from the stream. Access must be gained via public waters or lands, or from private property with the owner’s permission.
The court rejected arguments from private landowners that allowing the public to walk up streams and fish would amount to trespassing on their lands. Under such a finding, the court said, “we could enjoy no fishing or recreational rights upon much of the public water of this state, although access thereto could be reached without trespass on the privately owned lands of another.”
The New Mexico Legislature this year approved creation of a state division of outdoor recreation to encourage development of that important aspect of the state’s economy. In its 1945 ruling, the state supreme court also recognized the importance of outdoor recreation and the important role that fishing access plays in that.
“Opportunities for enjoying general outside recreation, sports, and fishing, are recognized as one of the outstanding attractions of our state, as indeed they are of many of the states,” the court ruling states. “The invitation to enjoy these activities is urgently and constantly extended by this and other states similarly situated, and millions of dollars are spent by tourists from less attractive areas who have come to enjoy them.”
Attempts to overturn the court ruling failed at the time. Since then, three New Mexico attorneys general have issued opinions that the court ruling means what it says: that people have a right to fish and use streams that cross private property as long as they don’t trespass to gain access.
Incumbent New Mexico Attorney General Hector Balderas issued the most recent such opinion in 2016, addressing the legality of the state law that passed in 2015 purporting to require people to get permission from landowners to use streams that run across private property.
In response to a query from the late State Rep. Luciano “Lucky” Varela whether the 2015 law was permissible, Balderas concluded that the New Mexico Constitution wouldn’t allow any interpretation of the new law, “that would exclude the public from using public water on or running through private property for recreational uses if the public water is accessible without trespassing on private property.”
Earlier opinions by former New Mexico Attorneys General Gary King and Tom Udall say essentially the same thing.
The NMWF in 2017 retained Santa Fe lawyer John Utton to review the issue and his conclusions mirrored those of the three attorneys general. Utton is a prominent water law attorney.
“…(L)andowners may not place a fence across a stream or otherwise preclude any person from recreating within a stream, including by traversing up and down the stream, so long as that person does not gain access to or from the stream by crossing private property,” Utton wrote.
Deubel, executive director of the NMWF, said he expects getting the game commission to roll back its rule purporting to certify waters as non-navigable will be only the first step in a long struggle to open all New Mexico streams and waters to public access. But he pointed out that Montana offers precedent for doing so.
Montana has taken steps in recent decades to make sure the public has full stream access following a 1984 state supreme court ruling there. In that case, the state’s high court held that the public may use streams or rivers that offer recreation capability for activities such as fishing and floating regardless whether the river is navigable and regardless of who owns it.
“Nobody’s saying this is going to be easy,” Deubel said. “We’re counting on support from New Mexico anglers and sportsmen to insist we get what’s rightfully ours. The state constitution recognized more than a century ago that everybody in New Mexico has a right to use the streams. We need to have the guts to stand up for what is ours.”
Links to Issue Documents:
NMWF Letter: Stream Access (2)
1945 NM Supreme Court Ruling: 7 1945-NMSC-034 ‘NM v Red River Cattle Co’
AG Balderas’s Opinion: 2 AG H Balderas advisory 5 Aug 2016
AG King’s Opinions: 1 AG G King opinion 1 April 2014
3 AG G King – SGC, initiate stream access process 22 Aug 2014
Attorney Utton’s Opinion: 4 J Utton – AG Balderas advisory correct, 8 May 2017
Other Documents:
6 NMWF Opposes 19.31.22 12 Dec 2017
5A American Whitewater – access_nm
5B EMNRD State Parks boating advisory
