By BEN NEARY
NMWF Conservation Director
SOCORRO — The New Mexico Game Commission on Wednesday called a temporary halt to a program that has allowed private landowners to enlist the state game department to certify that rivers and streams on their properties are closed to public entry.
The game commission imposed a 90-day moratorium on the New Mexico Department of Game and Fish certifying any more waterways as “non-navigable.”
The previous game commission last year approved five such certifications. They purport to require members of the public to get written permission from the owners of the five parcels before they may boat or fish or otherwise use the waterways that cross them.
Commissioners said Wednesday the moratorium will allow the New Mexico Attorney General’s Office time to finish a pending legal analysis of the “Non-Navigable Water Rule.” The previous game commission enacted it in 2017.
Game Department Director Mike Sloane asked for the formal opinion about the legality of the rule from New Mexico AG Hector Balderas earlier this month. Sloane asked Balderas whether the rule comports with state land and the New Mexico Constitution.
The New Mexico Wildlife Federation wrote to Sloane and members of the newly appointed game commission last month asking them to roll back the rule.
In its request, the NMWF letter cited a 1945 ruling by the New Mexico Supreme Court and subsequent state attorneys general opinions. All the legal findings concluded that the public 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. It doesn’t matter whether the waterways are navigable, they concluded.
Joanna Prukop, game commission chair, said Wednesday that former NMGF Director Alexa Sandoval told her recently that the game department itself didn’t develop the rule. Rather, Prukop said Sandoval told her it was drafted by the former commission chairman, Paul Kienzle, an Albuquerque lawyer.
An attempt to reach Kienzle after business hours Wednesday was not immediately successful.
Roberta Salazar-Henry, vice-chair of the commission, said she was aware that there’s a lot of public concern “about the secrecy or the furtiveness of creating this rule in the first place.”
Salazar-Henry made the motion for the moratorium. She emphasized that the action was not an attack on private landowner rights, but rather promised to give the commission clarity on a range of issues.
Prukop said she has discussed the rule with New Mexico State Engineer John D’Antonio. “He was very concerned that the game and fish department was dealing with matters of water law, which as we know in the West are very complex,” she said.
Prukop said she’s glad that the department has asked for an opinion from AG Balderas. She said she hopes the opinion will spell out guidelines and parameters for future commission action.
Balderas has weighed in on the stream-access issue previously. The late State Rep. Luciano “Lucky” Varela had asked Balderas whether a 2015 state law purporting to require the public to get permission from landowners before using streams that run across private property was constitutional.
In response to Varela, 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.
John Crenshaw, president of the board of the New Mexico Wildlife Federation, told commissioners Wednesday he was pleased to see them address the issue again.
Crenshaw said he had told Kienzle and other members of the previous commission repeatedly that he didn’t see where the staff of the game and fish department had the expertise or authority to try to address issues of stream navigability.
Kerrie Cox Romero, executive director of the New Mexico Council of Outfitters and Guides, was among representatives of several groups who defended the existing rule.
Romero said roughly 70 percent of the waters in the state are already open to the public, while only about 10 percent of the fishable waters are in private hands.
“There’s this big heavy push to access this 10 percent, and that’s because the waterways on private lands are world-class fisheries,” Romero said. She said private landowners have spent significant resources to restore and maintain their fisheries.
Prukop said she expects the game commission will consider what to do with the rule once they receive the pending AG’s opinion.
In other action, Stewart Liley, chief of the game department’s Wildlife Management Division, told commissioners that planning is underway to develop new four-year rules that will govern cougar and bear hunting in the state.
Liley said the department is recommending that the game commission prohibit trapping of cougars as a form of sport. He said trapping of cougars could still be used by game managers when necessary to protect other wildlife.
Liley said the commission should act on the new rules by late November so they will be in place in time to govern next spring’s hunting seasons.
Crenshaw, president of the NMWF, told the commission that the federation urges the commission to accept the staff’s recommendation to end recreational trapping of cougars.
Jessica Johnson, representing Animal Protection of New Mexico, told the commission her group supports ending sport trapping of cougars. She said her group had opposed the decision in 2015 to allow it in the first place.
Tanner Anderson, with the New Mexico Farm and Livestock Bureau, told the commission his organization would like to see landowners be able to kill bear and cougar on private property without permission or the need for a license. State law already allows landowners to kill predators that are harming livestock.
