Jason Kerkmans, board president of the New Mexico Wildlife Federation, will speak on the public’s right to use rivers and streams as the featured speaker at the federation’s Wildlife Wednesday event, Feb. 12 in Albuquerque.
Growing up in New Mexico, fly fishing shaped Kerkmans’s interest in conservation and honed his love of rivers.
“I grew up with a grandfather who was an avid fly fisherman, and who first started teaching me to fly fish not long after I turned ten,” Kerkmans said. “And like so many of us here, I had the distinct impression that in New Mexico, as you walk up a streambed that’s flowing over private land, that you’d be trespassing. And so I just never considered even the possibility of doing that.”
As a law student at the University of New Mexico in 2012, Kerkmans decided to research the legal history of how landowners came to control access to rivers and streams in the state. What he found surprised him, and led ultimately to a revolution in the enforcement of the state’s water laws that continues to make waves to this day.
It’s no surprise that Kerkmans and generations of other New Mexicans had believed that rivers and streams that cross private lands in New Mexico were off-limits. After all, that had been the official dogma from the New Mexico Department of Game and Fish for decades.
The game department had gone as far as printing up bumper stickers admonishing people to, “Ask First to Hunt & Fish on Private Land.” And the department’s annual fishing regulation books likewise falsely stated that anglers needed to ask landowners for permission before hitting the water that flowed over private lands.
Yet Kerkmans’s legal research quickly found that the New Mexico Supreme Court had ruled in a 1945 case, called Red River Valley, that the public indeed has the right to fish and recreate in all the waters of the state, regardless whether the surrounding lands are privately owned. The court noted that the right was not only enshrined in the New Mexico State Constitution, but dated back through New Mexico history.
“The law has always been in New Mexico that the public has this right to make use of water running over private land for recreation purposes,” Kerkmans said. The problem was that the public didn’t know it.
Somehow, the people of New Mexico had forgotten the court’s 1945 ruling. Over the intervening decades, people had become accustomed to landowners closing off rivers and streams behind barbed wire and no-trespassing signs..
Kerkmans wrote a law review article detailing his findings. Soon after that, the New Mexico Attorney General’s Office issued the first in a series of legal opinions stating, in essence, that Kerkmans was correct: the public has a right to fish and recreate on rivers and streams as long as they don’t trespass across private property to reach the water.
Nonetheless, many landowners strongly objected to the notion that they would have to share their cherished fishing spots with the public. The New Mexico Legislature responded by trying to stamp out the idea that the public had a right to use all waters in the state.
In 2015, during the administration of Gov. Susanna Martinez, the state enacted a law purporting to establish that landowner permission was necessary to fish or recreate on “non-navigable” public water. The New Mexico State Game Commission soon began issuing “non-navigable” certificates to private landowners stating that the rivers and streams that flowed over their lands were private.
The Adobe Whitewater Club, New Mexico Wildlife Federation and New Mexico Chapter of Backcountry Hunters & Anglers filed a lawsuit with the New Mexico Supreme Court in 2021 challenging the game commission’s “non-navigable” certification program. In 2022, the court unanimously ruled for the groups, holding that the program was unconstitutional.
Noting that the state constitution states that all unappropriated water belongs to the public, the court opinion stated, “the question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds beneath those waters. We conclude that it does.”
The opinion also stated that the public has the right to fish in public water. “This right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right,” the court held.
Landowners who had benefited from the state’s bogus “non-navigable” certificates asked the U.S. Supreme Court to overturn the state court decision, but the high court refused to weigh in.
Other landowners recently filed a separate federal lawsuit in New Mexico claiming that the state court decision amounted to a government taking of their private property rights without compensation. Lawyers with the New Mexico Attorney General’s Office defended the decision, saying landowners didn’t lose anything because they never had the legal right to exclude the public from using the water. The judge in that case dismissed it in January 2025 at the request of the AG’s Office.
“There was never a law that privatized or prohibited access to that land,” Kerkmans said. “There was an administrative publication that we all followed and that recreationists and law enforcement didn’t question. But that doesn’t make it a law.”
The only way to change New Mexico’s sweeping stream access law would be to amend the state constitution, Kerkmans said.
Kerkmans credited the NMWF and other conservation groups and their attorneys for challenging the state law and privatization regime, “Without that effort, nothing actually changes,” he said. “It just becomes something that gets harder and harder to unwind or correct down the road. What’s really unique in New Mexico is we had this constitution that provided this public right, but then we have these groups and people that invested so much in protecting the public’s right to use its resources that we actually were able to turn this around, or correct the wrong that was perpetuated.”
Despite the clear rulings from the state and federal courts, the New Mexico State Game Commission has done little to inform the public about the right to fish and recreate on public waters.
Mike Sloane, director of the New Mexico Department of Game and Fish, has come under criticism from state lawmakers for failing to direct personnel in his agency to take action to remove barriers to public access. In response, Sloane has said he believes the state Legislature needs to clarify how the public may use public water.
“It’s really disappointing because the enforcement arm of our government, the peoples’ representatives, are tasked with following the law,” Kerkmans said of the game department’s performance. “The law’s been settled, it’s been clarified twice, in 1945 and again in the Adobe Whitewater case, and they’re now sort of sticking their head in the sand, and acting like it isn’t something they have to enforce or deal with. They’re trying to just avoid it in the hopes that the public again falls into a state of complacency and doesn’t realize that one generation from now, barbed-wire fences may again start showing up on rivers that otherwise they have access to use.”
Gov. Michelle Lujan Grisham removed two members of the state game commission who had expressed concerns about the state’s river privatization program before the state supreme court shot it down. Since then, her administration has made no perceptible effort to encourage public use of public waters.
However, New Mexico Attorney General Raúl Torrez has stepped into the leadership void left by Lujan Grisham and the game commission/game department on the stream-access issue. Torrez has taken legal action against private landowners along the Upper Pecos River that has resulted in several of them removing illegal fences and signage that had blocked public access.
While some landowners statewide have argued that allowing the public onto public waters will lead to littering and habitat degradation, Kerkmans said he disagrees.
“We as a community of outdoors people would be just as concerned about the conservation of fish and wildlife habitat that are running over private property as we are those running over public property,” Kerkmans said.
“That’s where actions by the attorney general and his office have really been important,” Kerkmans said. “Because if there wasn’t some group or some authority that wasn’t checking to make sure that the public’s rights aren’t impeded here, then my kids’ kids may grow up again thinking that they don’t have the right to access the water that our constitution has provided them.”
At this stage, Kerkmans said it’s critical that New Mexico anglers, boaters and the general public get the message that they have a right to use public waters.
“There is something to be said for vacuums, and largely, that’s how we got in this position,” Kerkmans said. “Sometime between 1945 and 1980, the public stopped paying attention and a vacuum was created and landowners were able to claw back a working prohibition.”
Kerkmans said he intends his Wildlife Wednesday presentation to help further the discussion of how New Mexicans can protect and preserve their rights in the future. Public awareness is necessary, he said, to “keep it something that future executive branches of the government have to respect or deal with the law appropriately, as opposed to allowing a vacuum that the game commission just doesn’t have to pay attention to.”
Kerkmans’s free presentation starts at 5:30 p.m., Feb. 12, at Marble Brewery’s Northeast Heights Taproom, at 9904 Montgomery Blvd., NE, Albuquerque.