By BEN NEARY
NMWF Conservation Director
The legal challenge by the New Mexico Wildlife Federation and other groups seeking to overturn a state rule that purports to allow landowners to limit access to public waters continues to advance in the state court system.
Santa Fe lawyers Gene Gallegos and Seth Cohen represent the NMWF, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. Gallegos and Cohen filed a petition for the groups in the state supreme court in early 2020 challenging a New Mexico State Game Commission rule.
Since the rule went into effect in 2018, the game commission has granted five applications from out-of-state landowners to certify waters as “non-navigable” on New Mexico waterways, including the Rio Chama and Pecos River. After securing the certifications, the landowners have denied public access to the waters.
In their legal challenge, the NMWF and other groups hold that the game commission’s “non-navigable” certification program violates the state Constitution.
Gallegos and Cohen filed a brief Dec. 20 with the New Mexico Supreme Court. The state game commission and a number of landowners who have intervened in the case are set to file a response brief later this month. The court has scheduled oral arguments for March 1.
The game commission had called a halt to considering landowner applications to close more waters after the NMWF and other groups challenged the program. However, the landowner applicants secured a federal court order last March directing the commission to act on five pending applications.
The Game Commission in August rejected all five pending applications from landowners. In rejecting the applications, the commission majority adopted findings stating 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.
In their brief filed Dec. 20, Gallegos and Cohen pointed out that the New Mexico Supreme Court addressed the issue of the public right to access the waters of the state in its 1945 landmark case, State ex rel. State Game Commission v. Red River Valley Co.
In the Red River 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.
Gallegos and Cohen argued in their brief that the court’s ruling in the Red River Valley case compels it to invalidate the game commission’s stream access rule.
“The rule’s practical implications are substantial: it allows the outright closure to the public of segments of every river and stream in New Mexico where it runs through private property,” the lawyers wrote.
Gallegos and Cohen state in their brief to the court that the legal proceedings give the court the opportunity to clarify the public’s rights: “…(T)o make explicit what has necessarily been implicit for centuries: that the public’s right to use public waters in New Mexico carries with it the incidental rights to use privately owned riverbeds or banks as reasonably necessary for fishing or recreational use.”
In the years since the 1945 decision, several New Mexico attorneys general have issued opinions supporting the court ruling.