The fight to keep New Mexico streams open to the public gained traction last week when U.S. Senator Martin Heinrich wrote a letter to the New Mexico Game Commission urging the Commission to deny applications to block public stream access. Under New Mexico law signed by Governor Martinez, private landowners whose land lies along a waterway can apply to have those waterways be reconsidered as “unnavigable” by the Commission. That designation allows the property owner to fence it off or block public access to formerly public streams and waterways popular with fishermen and public lands enthusiasts.
The debate over the public’s right to access waterways began in 2014 when then-Attorney General Gary King issued a nonbinding legal opinion that if an individual is wading or walking through a waterway on private property, it is not considered trespassing. His decision also noted that individuals are not allowed to enter private property to access a waterway, but the waterway itself is open to the public. It was this decision that sparked private landowners and state legislators to take action on the issue.
Private outfitters and big land owners in the business of charging thousands of dollars for private fishing trips on these public waterways pushed back and found allies in Republican leaders in charge in Santa Fe at the time. In 2015, Former Governor Susana Martinez signed into law legislation pushed by a handful of private ranch owners and outfitters. Their legislation passed the State House without a single Democrat’s vote and one landowner, Dan Perry gave more than $50,000 to various Republican state political committees ahead of the next election, according to the Albuquerque Journal. The ex-oil and gas lawyer also owns Trout Walker Ranch, a fly-fishing and hunting operation located south of Chama. The ranch lies along the Chama River and Rio Chamita, two rivers renowned for world-class fly-fishing opportunities.
Under the law, anglers and outdoor enthusiasts must obtain written permission from the landowner if they wished to access a public waterway closed by a private landowner. Without written permission, anyone caught on private land can be charged with trespassing. The law allowed N.M. Game and Fish to enforce regulations that barred individuals from entering a waterway through private property. Supporters of the law say that the law protects the rights of private property in the state. Public access advocates and sportsmen have condemned the move with concerns that much of New Mexico’s waterways will be closed off and privatized.
In a letter to the Commission last week, Heinrich said that the law sets a dangerous precedent for landowners throughout the state. As the law now stands, it would give “wealthy private landowners control over every stream, river, and watercourse in New Mexico, and doing so would violate longstanding principles of New Mexico law,” Heinrich said in his letter. Heinrich also noted that Article 16, Sec. 2 of the New Mexico State Constitution states: “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.”
Three conservation and public access advocacy groups filed a lawsuit against the governor and the Commission in March 2020 to overturn the 2017 law, including the New Mexico Wildlife Federation, Backcountry Hunters and Anglers, and the Adobe Whitewater Club. In response, by mid-April, landowners and other groups in support of the 2017 law, most notable among them being the New Mexico Council of Outfitters and Guides, intervened on behalf of the law. They argued that they would be negatively impacted if the New Mexico Supreme court strikes down the law.
In his letter, Heinrich drew attention to the subjectivity of “navigability,” the standard used to determine whether a stream or river is public or not. He noted that even the Rio Grande is not considered to be a “navigable” waterway, as it cannot support waterborne commerce in its normal condition. Heinrich is especially critical that public access to a waterway is dependent on a waterway’s “navigability” and that “navigability” in other regions of the U.S. is dependent on a waterway’s ability to support waterborne commerce. Under normal circumstances, none of New Mexico’s waters can support waterborne trade. Heinrich referred to the process of determining a waterway’s “navigability” as a “sham.”
Martin Heinrich’s press office issued this statement in a press release from last week: “The commission’s rule has upended anglers’, boaters’, and other recreationists’ right to access public streams, putting a halt to activities that have long been enjoyed by New Mexicans throughout the state, and drawn visitors from both near and far, contributing to our outdoor recreation economy.”
Under Governor Michelle Lujan Grisham, the NM Game Commission agreed to temporarily halt non-navigable water certification applications in 2019.