By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — The New Mexico Attorney General’s Office says the state supreme court will have to look to the state Constitution to resolve a pending lawsuit challenging a program that allows landowners to get state certification that certain rivers and streams that flow across private property are closed to the public.
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 a New Mexico State 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’ petition named the game commission and Gov. Michelle Lujan Grisham as respondents. The New Mexico Attorney General’s Office filed its response to the groups’ petition Monday afternoon.
The AG’s response states the game commission has broad regulatory authority to follow the mandates of the state Legislature to address public health, safety and welfare. The AG’s Office also agreed with the petitioners that the state Constitution spells out what water in the state belongs to the public.
But to address the larger question of whether the game commission rule certifying that “non-navigable” rivers and streams may be closed to the public is constitutional, the NM Attorney General’s Office responded that the high court will have to analyze the meaning of the state Constitution itself.
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.
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 AG’s Office states that the groups’ pending legal challenge to the “non-navigability rule” will require the NM Supreme Court to go further in its constitutional analysis of the state’s water law than it did in the 1945 case.
The game commission met in closed session on Monday morning by teleconference to discuss the lawsuit but specified afterward they took no action. The commission also considered another suit filed by Michael Sloane, game department director, in which he sued the commission seeking a legal determination on the issue. Sloane’s suit is on hold while the high court considers the groups’ case.
The game commission enacted the rule in 2018, allowing landowners to petition the commission to certify that rivers and streams crossing their property are non-navigable and accordingly closed to public access without the owner’s written permission.The commission enacted the rule following passage of a state law in 2015 that purportedly enabled landowners to post “non-navigable” streams and their streambeds against trespass.
The game commission so far 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.
In their petition to the NM Supreme Court, the groups emphasized that the New Mexico Constitution specifies the unappropriated water of every stream in the state belongs to the public. Whether a river is navigable makes no difference, they maintain.
The groups are represented by Santa Fe lawyer Gene Gallegos, himself a boater and trout fisherman.
During a public comment session of Monday’s commission meeting, lawyer Logan Glasenapp of the group New Mexico Wilderness Alliance, said the public’s right to access public waters doesn’t hinge on whether the water’s navigable. He said the non-navigable rule is unconstitutional because it already has resulted in the closure of five segments of public water and has the capacity to close most of the streams flowing in the state.
“Our position is and always has been that the public has a right to access and use the public waters of New Mexico,” Glasenapp said. “That right is broad and includes any uses incidental to the use of public water, including walking and wading across and upon and upon streambeds and banks.”
Glasenapp noted that, in the years since the 1945 decision, several New Mexico attorneys general have issued opinions supporting the court ruling.
Current NM Attorney General Hector Balderas’s office issued a letter to the game commission on the stream access issue last fall. The letter concluded that any language in the game commission’s non-navigable rule that attempted to prohibit access to the public waters of New Mexico is unconstitutional and unenforceable.
On Friday, a number of landowners who already have received non-navigability certificates from the state 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.
The following individuals and groups filed a request on Friday with the New Mexico Supreme Court seeking to get into the case: Chama Troutstalkers, LLC; Rio Dulce Ranch; Z&T Cattle Company, LLC; Rancho del Oso Pardo, Inc., River Bend Ranch, Chama III, LLC, Fenn Farm, Three Rivers Cattle, Ltd., Co., Flying H Ranch, Inc., Spur Lake Cattle Co., Ballard Ranch, Dwayne and Cressie Brown, Cotham Ranch, Wapiti River Ranch, Mulcock Ranch, 130 Ranch, Wilbanks Cattle Co., WCT Ranch, the New Mexico Farm and Livestock Bureau, Chama Peak Land Alliance, New Mexico Cattle Growers’ Association, New Mexico Council of Outfitters and Guides and the Upper Pecos Watershed Association.
In their application to participate in the legal proceeding, the groups assert that their property interests won’t be represented adequately by the governor’s office or the attorney general. They argue that a court ruling that landowners can’t exclude the public from privately owned riverbeds would amount to a “taking” that would result in more litigation and expose the state to enormous financial liability.
The groups assert that the public has the right to recreate upon public waters as long as they don’t wade on the private land under the water. The court hasn’t ruled yet on their request to enter the case.