By Ben Neary
NMWF Conservation Director
New Mexico Attorney General Raúl Torrez has asked a federal court to dismiss a lawsuit filed by a group of New Mexico landowners challenging the public’s right to fish and recreate on rivers and streams that cross private land.
Torrez’s office filed a response on Monday to the landowners’ lawsuit. The response is signed by Assistant Attorney General Kathleen Rosemary Bryan.
Landowners Lucia Sanchez, Michael F. Sanchez, Jr., Erik Briones, Richard Jenkins and Roland Rivera filed the lawsuit in late June. They’re represented by the Pacific Legal Foundation.
The landowners had asked the federal court to prohibit AG Torrez, the New Mexico State Game Commission and Michael Sloane, director of the NM Department of Game and Fish, from taking any action to block the landowners from excluding the public from using rivers and streams that cross their private lands.
The landowners’ federal case is the latest battle over the public’s right to fish and recreate on New Mexico rivers and streams. While that right is spelled out in the state constitution, its roots date back even further in the region’s history, stemming from prior centuries of Mexican, Spanish and Indian rule.
In their federal Lawsuit, landowners asserted that a 2022 ruling by the New Mexico Supreme Court, and subsequent state actions to open rivers and streams to public access, violate the landowners’ right to exclude people from their private property. The landowners claim that the state court ruling and state enforcement actions to open closed waters amount to an unconstitutional government taking of their private property rights without compensation in violation of the Fifth Amendment.
In its 2022 ruling, the New Mexico Supreme Court reaffirmed the public’s right to fish, boat and otherwise recreate on rivers and streams that flow over private land. The court emphasized that members of the public may not trespass across private lands to reach the water, nor trespass from the water across private property.
In its ruling, the NM Supreme Court stated that it was reaffirming the longstanding public right to use public water, not creating any new public right. The court ruling, following a similar ruling by the court in 1945, noted that the New Mexico State Constitution specifies that all waters in the state are public.
The court specified that its 2022 ruling did not amount to an uncompensated government taking of private property because landowners never had the right to exclude the public from public water.
“We hold that the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right,” the New Mexico Supreme Court stated in its unanimous opinion.
The New Mexico Supreme Court ruling came 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. The groups had challenged a regulation adopted by the New Mexico State Game Commission that went into effect in 2017. That regulation purported to allow landowners to close streams over their properties to public access once the commission certified they were non-navigable.
The U.S. Supreme Court last year declined to hear arguments from private landowners that the NM Supreme Court ruling amounted to an uncompensated taking.
Torrez’s office, in its response filed this week, also states that the landowners are in error when they claim that the 2022 ruling constituted uncompensated government taking of the landowners’ right to exclude the public from rivers and streams. Landowners have never had the right to block public use of the water so the court ruling didn’t take anything from them, the AG’s Office states.
“Plaintiffs are asking the court to endorse the use of the Fifth Amendment, not as a shield to protect themselves from a state government taking, but as a sword that would allow private landowners to seize exclusive access to water in the desert from the public,” the AG’s Office stated.
In other arguments, the AG’s Office stated that the federal district court in New Mexico lacks authority to reverse the NM Supreme Court decision. States have clear authority to set their own water laws and only the U.S. Supreme Court could disturb the ruling by the state’s highest court, the AG’s Office states.
One of the landowners bringing the new lawsuit is Erik Briones, who has fenced off a portion of the Pecos River upstream from the Village of Pecos.
In response to a lawsuit filed by the NM Attorney General’s Office, Briones in March entered into an agreement with the state to remove all barriers and signs and refrain from threatening physical violence against people who fish, boat or otherwise recreate on the Pecos River. Under the agreement, he was to have removed all fences and other obstacles that interfere with public access by May 24. He also agreed to remove signs that have threatened prosecution for anyone using the river.
The Briones consent decree was approved by State District Judge Flora Gallegos. It states that the court will continue to have control over the case and that any violation of the agreement could incur penalties for contempt of court.
The Attorney General’s Office states in its response to the landowners’ lawsuit that Briones is is in violation of the consent decree and that the federal court lacks authority to address the issue.
“The consent decree is final, and (Briones’s) open violation of that decree is properly resolved through contempt proceedings in New Mexico’s Fourth Judicial District,” the Attorney General’s Office wrote. “He cannot proceed in federal court.”