NMWF News:
The New Mexico Supreme Court Tuesday unanimously decided that a state game commission rule purporting to allow landowners to limit access to public waters is unconstitutional and void.
The court ruled in response to a legal challenge brought by the New Mexico Wildlife Federation (NMWF), the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers.
Santa Fe lawyers Gene Gallegos and Seth Cohen represented the groups at Tuesday’s court hearing. They emphasized that the rule violates the New Mexico State Constitution’s guarantee that the unappropriated waters of the state belong to the public.
Representatives of the groups that brought the legal challenge said they were heartened to see the court roll back the rule and stand up for public access:
“The decision by the New Mexico State Supreme Court confirms what the New Mexico Wildlife Federation has been saying for years, that allowing private landowners to restrict public access through rivers where those rivers cross private land is a violation of a right reserved to us by our New Mexico State Constitution,” Jesse Deubel said, executive director of the NMWF. “The privatization of publicly owned natural resources seems to be an increasing threat across the West. From access to public lands and waters to the increased push to privatize wildlife, these violations of the Public Trust Doctrine are unacceptable and cannot be tolerated.”
“This decision by the Supreme Court is great news for anglers, boaters and others who use our public waters in New Mexico, but it shouldn’t be a surprise,” Joel Gay said, policy chair for NM Backcountry Hunters & Anglers. “In 1945 the Supreme Court said the same thing – that these waters throughout the state are for everyone to enjoy for recreational use. We don’t know how that constitutional right got lost, but for decades we have been told otherwise. Our chapter thanks the Supreme Court for setting the record straight — again.”
“New Mexico’s rivers and streams are rare and precious resources that all New Mexicans are entitled to enjoy,” Scott Carpenter said, President of the Adobe Whitewater Club. “This access is part of New Mexico’s heritage. The New Mexico Supreme Court unanimously ruled today that the public has a long-standing constitutional right to recreational uses of these rivers and streams. That right includes contact with the streambed and banks that is incidental to recreational use of the water. The court ruled it is unconstitutional for private landowners to fence the public out.”
“The New Mexico Supreme Court ruled today that citizens and visitors from all walks of life have a constitutional right to recreational uses of New Mexico’s public waters, including New Mexico’s best natural fishing streams,” Robert Levin said, New Mexico State Director of the American Canoe Association. “A handful of landowners do not have the exclusive right to the recreational and economic benefits of public streams flowing across private property. They cannot monopolize the public resource for their exclusive benefit.”
“I’m thankful that the Game Commission rule will no longer be a barrier to our state’s policy of developing a robust river touring component to our outdoor recreation economy.” Steve Harris said, director of the New Mexico River Outfitters Association.
In their arguments Tuesday, 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.
Since the game commission rule went into effect in 2018, the commission has granted five applications from out-of-state landowners to certify waters as “non-navigable” on New Mexico waterways, including stretches of the Rio Chama and Pecos River. After securing the certifications, the landowners have denied public access to the waters, in some instances placing fences across the rivers that prevent boating access.
After hearing arguments in the case, the supreme court justices took a short recess before returning to the courtroom to announce that they were unanimous in finding that the rule is unconstitutional and that the “non-navigable” certificates that the game commission had issued to landowners are void. The court will issue a written opinion spelling out its legal findings.
