By BEN NEARY
NMWF Conservation Director
The director of the New Mexico Department of Game and Fish needs to launch an outreach campaign to explain the public’s right to access rivers and streams that flow over private property, an official with the New Mexico Wildlife Federation said Friday.
But if NMDGF Director Mike Sloane is taking or planning any actions, he declined to say what they are or explain why.
John Crenshaw, president of the NMWF board, commented during Friday’s meeting of the New Mexico State Game Commission that he sees a real potential for violence without quick action by Sloane to address the issue. Crenshaw is retired from the game department, where he served as chief public information officer.
Sloane didn’t respond to Crenshaw’s comments during the commission meeting and said afterward he had no comment.
The New Mexico Supreme Court issued a written decision last September reaffirming the longstanding right of New Mexicans to walk or wade on the streambeds of water that flows over privately owned lands for fishing or other recreation.
“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 court emphasized that the public can’t trespass across private land to reach the waters, and can’t trespass from the waters onto private land. It stated that the public’s right to use waters that cross public land is spelled out in the state Constitution and has its roots in New Mexico law from previous Native American, Spanish and Mexican law.
The New Mexico Supreme Court ruling came in response to a legal challenge brought by the NMWF, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. The groups had challenged a game commission regulation that went into effect in 2017 that purported to allow landowners to close streams over their properties.
The Supreme Court of the United States in February declined to hear arguments from landowners who claimed that a New Mexico court ruling upholding the public’s right to access rivers and streams that flow over private property amounted to an impermissible government taking.
Despite the court rulings, many private landowners continue to block public access with barbed wire fences and no-trespassing signs over New Mexico rivers, including the Pecos and Chama – popular boating and fishing locations.
Crenshaw asked Sloane to relay to the game commission and the public any steps the game department has taken to initiate public outreach and to seek input on transitioning to public use of the public waters where they flow through private lands.
“Now surely, the department is getting some of the same questions that I personally, the federation staff and many others have been getting,” Crenshaw said. He listed the following questions:
_ What constitutes recreation when it comes to using public waters? He said fishing, boating, swimming and wading are obviously permissible uses, but asked about hunting, birdwatching, horseback riding and ATV use.
_ What are the boundaries of legal use? Crenshaw said that if the public is limited to staying within the high water mark on the side of a waterway, he questioned how that is defined. “Can I legally go above it to get around unsafe stretches of water?” he asked. “Are irrigation ditches and canals through private land also open? What about arroyos when they’re dry? Can I camp along the stream? If so, where? How do I deal, how does the department deal, with a fence and a no-trespassing sign blocking access to a river I know is open to public use?”
_ Crenshaw asked whether there are gaps in the game department’s leadership authority or enforcement authority that limit its ability to address the issue. He suggested the game department could look to other states for tips on how to structure its administration of public access to waters that flow over private lands. He said the NMWF and other groups would help with a public outreach and input program.
“But the stakeholders don’t have the resources and don’t have the authorities to take the lead to put out answers to those questions with authority behind it,” Crenshaw said. “So all of us, the public, the users and the landowners and the guides and the outfitters all alike, we all badly need the state’s leadership as an authoritative information source.“
Crenshaw said he knows from his long experience as an information officer that when there’s an information vacuum, misinformation and wilful disinformation rushes in to fill it.
“That’s happening now,” Crenshaw said. “So let’s face it, that sets the stage for conflict, even potentially violence, between users and landowners. So again, I’d ask the director to update us on what’s been done, being done or planned for to move this transition along in the interests of the public and safety of all the stakeholders.”
Speaking after the meeting, Crenshaw said the public deserves to hear from Sloane and the game commission how they intend to address the issue. “The commission and the department were only too happy to help private landowners fence off public waters in the past,” he said.. “Now that the courts have spoken, it’s time for them to help the public exercise their rights to access public waters. Merely standing silent and failing to act doesn’t cut it.”