By BEN NEARY
NMWF Conservation Director
The New Mexico State Game Commission on Thursday rejected all five applications from landowners seeking state certifications that rivers crossing their property are non-navigable and closed to the public.
Meeting at the State Capitol in Santa Fe, the commission adopted factual findings that granting the applications would harm the public and violate the New Mexico State Constitution’s guarantee that the unappropriated waters of the state belong to the public.
Jeremy Vesbach, vice-chairman of the commission, said he couldn’t vote to approve any of the applications.
“I think it’s a denial of the public’s constitutional right to deny access to the streambed,” Vesbach said. He added that it’s well known that people have floated watercraft on several of the rivers at issue.
Commissioner Roberta Salazar-Henry said the state game commission doesn’t have authority to determine questions of navigability.
Salazar-Henry noted that a landmark 1945 state supreme court ruling clearly established that the public has a right to use streams provided they don’t trespass on private property.
“I believe that approving any of the applications today would be a violation of the New Mexico Constitution and my oath,” Salazar-Henry said.
Commissioner Tirzio Lopez held up a copy of his signed oath of office .
“This piece of paper here is the oath I took on becoming a New Mexico state game commissioner,” Lopez said. He proceeded to read the portion that says the unappropriated water of the state belongs to the public.
Commissioner Jimmy Bates, the lone Republican on the commission, voted to deny the applications but made no comment.
Commission Chair Sharon Salazar Hickey abstained from the votes, noting that the New Mexico Wildlife Federation and other groups have a pending legal challenge against the certification program.
Salazar Hickey had postponed action on the applications earlier this summer to give the New Mexico Attorney General’s Office time to investigate whether she or any other commissioner had a conflict of interest in hearing the applications.
Salazar Hickey noted in June and again at Thursday’s meeting that her daughter intends to start work next month at the Modrall Sperling law firm. The firm represents all five applicants seeking commission certification that rivers and streams across their property are non-navigable.
Valerie Joe, the assistant New Mexico attorney general advising the commission, announced Thursday that her office had determined no commissioner had a conflict of interest that would prevent them from considering the applications.
The New Mexico Wildlife Federation, the Adobe Whitewater Club and Backcountry Hunters and Anglers filed a lawsuit in the New Mexico Supreme Court early last year seeking to overturn the state’s “non-navigable” certification program. The groups hold that the program violates the state Constitution by blocking the public from accessing public waters.
The New Mexico Supreme Court has yet to rule on the groups’ request to invalidate the game commission’s non-navigable rule.
The New Mexico Supreme Court earlier 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 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.
In the years since the 1945 decision, several New Mexico attorneys general have issued opinions supporting the court ruling.
The game commission had called a halt to considering landowner applications for non-navigable certifications after the NMWF and other groups filed their legal challenge. The landowner applicants secured a federal court order in March directing the commission to act on the applications.
Before it stopped acting on applications last year, the game commission had granted five other applications from out-of-state landowners certifying waters as “non-navigable” on New Mexico waterways including stretches of the Rio Chama and Pecos River.
Vesbach said Thursday that the owner of one of the stretches of water that the previous game commission certified as being non-navigable has built a barrier on the river that he said creates a hazard to the public. He didn’t specify which river.
The commission rejected the following applications on Thursday:
_ Canones Creek Ranch, on the Chama River and Rio Chamita in Rio Arriba County. The application states that the ranch is owned by a Texas limited liability company.
_ Fenn Farms, on the Hondo and Berrendo rivers in Chaves County. The application states that a New Mexico company owns the property.
_ Rancho de Oso Pardo, on the Chama River in Rio Arriba County. The application states the property is owned by a New Mexico company.
_ River Bend Ranch, on the Upper Pecos River in San Miguel County. The application states that a Texas company owns the ranch.
_ Three Rivers Ranch, on Three Rivers Indian Creek in Lincoln and Otero counties. The application states that a New Mexico company owns the property.
Marco Gonzales, the Modrall Sperling lawyer representing the applicants, urged the commission to approve the applications.
“This issue involves the intertwining of constitutional rights, private property rights and the constitutional right that the people own the water,” Gonzales said. “They must coexist with one another. It’s for the Legislature to set that balance, they set that balance with the statute that basically codified the longtime rule that you have to have written permission of the landowner.”
Gonzales said the only question for the commission to consider under the rule was whether there was substantial evidence that the waters were navigable at the time of statehood. “That’s the only issue that you need to consider to approve,” he said.
John Crenshaw, chairman of the New Mexico Wildlife Federation, noted that the New Mexico Legislature recently began funneling hundreds of thousands of dollars into the state’s Office of Outdoor Recreation and into outdoor equity programs.
“Without access to the public’s lands and waters, there can be no equity,” Crenshaw told commissioners.
“We can’t draw a license, and that’s perhaps because 40 percent of the elk licenses go to non-residents, and the commission has a role there,” Crenshaw said. He added that millions of acres of state and federal public lands are blocked off by private holdings.
“It doesn’t take a very big piece of private land or an abandoned county road to block tens of thousands of acres of public land,” Crenshaw said, adding that blocking access to a short stretch of river likewise can result in blocking access to miles more.