Confirming the public’s right to access streams that flow through private property, the New Mexico Supreme Court (NMSC) earlier this month determined a state wildlife agency rule allowing landowners to restrict such right of entry is unconstitutional.

Several western states are seeking courts’ opinions on the public’s right to float or wade through navigable streams that flow through private property. In New Mexico, the court has confirmed recreationists’ rights to use “non-navigational” streams, providing the user doesn’t trespass public land surrounding the body of water.

In 2015 legislators, by a one-vote margin, amended the New Mexico trespass law, barring the public from wading in streams running through private property without written permission from the landowner. Three months later the state Fish and Game Commission (NMFGC) established a rule allowing landowners to certify these streambeds as “non-navigable,” declare them as private property and fence the public out.

Three New Mexico Attorney Generals have over time concurred that a 1945 NMSC decision in “State Game Commission vs. Red River Cattle Co.” allows the public to utilize streams and streambeds where they run through private property, providing they don’t trespass onto adjoining private land.

In 2017 the Commission used the rule to issue five non-navigable water certificates to landowners on the Rio Chama, Pecos, and Mimbres rivers; and on Alamosa Creek and Rio Penasco streams. Some of them posted no trespassing signs and fenced through the waterways.

CONTROVERSIAL RULE OVERTURNED

The rule has pitted a past and current New Mexico governor against Fish and Game Commission members, which some claim led to one of that body’s chairpersons not being reappointed to that seat, and the removal of another commissioner. These two governors have also received campaign contributions from the companies and individuals who received these certifications.

In 2019 the Commission requested the NMGF director to amend or repeal the rule, but paused those changes after landowner certification applicants sought a federal court order, leading the Commission to reject five additional requests in Chaves, Lincoln, Otero, Rio Arriba and San Miguel counties in 2021.

Shortly afterwards Gov. Michelle Lujan Grisham removed Jeremy Vesbach, an advocate for public stream access, from the Commission. The governor’s office denied that the removal was a result of Vesbach’s position on stream access.

Adobe Whitewater Club of New Mexico, the New Mexico Wildlife Federation and the New Mexico Chapter of Backcountry Hunters and Anglers petitioned the state’s highest court in 2020, asking it to strike down the commission rule and invalidate the five waterway segment certifications that were issued under the rule.

In April 2020, Senator Heinrich and former U.S. Senator Tom Udall filed an amicus, or “friend of the court,” brief before the New Mexico Supreme Court to defend New Mexicans’ right under the state constitution to access public surface waters.

The NMSC ruling also invalidates the certifications already issued.

Anglers and other users in several states have asked the courts to clarify public stream access through private property in recent years, including neighboring Colorado, where a Court of Appeals in January 2022 ruled that a key public waters access case can move forward.

In Utah recreationists have recently been dealt setbacks in public access cases from the courts, but now are working with legislators to craft laws to address the issue.

— Etta Pettijohn