By BEN NEARY
NMWF Conservation Director
ALBUQUERQUE — New Mexico’s highest court has agreed to hear a petition brought by the New Mexico Wildlife Federation and other groups challenging a state rule that seeks to allow landowners to ban the public from fishing, boating and otherwise using rivers and streams that flow across private property.
The New Mexico Supreme Court on March 30 ordered Gov. Michelle Lujan Grisham and the NM State Game Commission to respond to a petition filed by the New Mexico Wildlife Federation and the other conservation groups. The groups are seeking a court order to invalidate a game commission rule that purports to allow landowners to block the public from accessing rivers and streams that flow across private property.
The NMWF, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers filed their petition March 13. They’re represented by Santa Fe lawyer Gene Gallegos, himself a boater and trout fisherman.
The rule enacted by the game commission in 2018 allows 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 New Mexico 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.
The groups also note in their petition that 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.
In an order filed Monday, Chief Justice Judith K. Nakamura, joined by Justices Barbara J. Vigil, C. Shannon Bacon and David K. Thomson, ordered the state to file a response to the groups’ request for a court order finding the rule is invalid and unenforceable.
In the years since the 1945 decision, several New Mexico Attorneys General have issued opinions supporting the court ruling.
Michael Sloane, director of the New Mexico Department of Game and Fish, represented by top lawyers on the staff of Gov. Lujan Grisham, filed a lawsuit against the game commission in state district court in Santa Fe on March 4 asking the court to declare whether, and under what circumstances, a landowner may prohibit members of the public from accessing waterways that flow through the landowner’s property. That lawsuit is pending.
Click here to review the NM Supreme Court petition.