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AG: Anglers aren’t trespassing if they stay in the water

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Landowners can’t stop New Mexico sportsmen from fishing in a stream that crosses private property if the fisherman is wading or standing in the water rather than trespassing on adjacent land, Attorney General Gary King said Wednesday in a legal analysis applauded by a sportsmen group.

King reached the conclusion in a nonbinding legal opinion that could spark a fight over fishing access in a state where many prime trout streams, such as the Brazos and Pecos rivers, are bordered by private land and are small enough to wade.

King said fisherman can’t trespass to gain access to public waters, but that “walking, wading or standing in a stream bed is not trespassing.”

Existing state laws and regulations don’t directly address the question of the public’s right to fish in streams crossing private land, according to King’s office. State wildlife agency rules deal with trespassing by sportsmen.

Game and Fish Department rules prohibit fishing on private property without the landowner’s written permission when the land is properly posted with signs.

The agency, which is responsible for enforcing fishing and hunting rules, didn’t immediately respond to telephone calls and emails seeking comment on King’s legal analysis

The New Mexico Wildlife Federation praised King’s opinion.

“This is great news for New Mexico anglers,” said Garrett VeneKlasen, the group’s executive director.

“This opinion reverses decades of actual practice,” he said in a statement, “and we all — sportsmen, landowners, the Game and Fish Department — need some time to assess the implications and figure out how to implement the changes. For starters, we’ll need to implement an intensive stream-steward program, widespread educational and outreach effort to anglers and landowners to prevent conflicts. This is not going to be an easy transition, but it is a red-letter day for New Mexico anglers.”

The New Mexico Farm and Livestock Bureau voiced opposition to King’s legal opinion and said it would ask for clarification from the Game and Fish Department.

“This opinion goes against the grain of private property rights in New Mexico,” Chad Smith, the organization’s CEO, state in a statement. “New Mexico’s farmers and ranchers should be able to post no trespassing signs and expect that those will be honored by hunters and fishermen across the state.”

According to the opinion written by Assistant Attorney General Stephen Farris and signed by King, landowners — even if they own the stream bed and surrounding land — can’t prevent fishing in streams and rivers because the water belongs to the public.

“The public’s right to use public waters for fishing includes activities that are incidental and necessary for the effective use of the waters. This includes walking, wading and standing in a stream in order to fish,” the opinion concluded.

A nearly 70-year-old state Supreme Court ruling established the right to fish from a boat on a public lake bordered by private land, and King’s office drew on that in reaching its conclusion about fishermen who are wading in a stream.

“A private landowner cannot prevent persons from fishing in a public stream that flows across the landowner’s property, provided the public stream is accessible without trespass across privately owned adjacent lands,” according to the attorney general’s opinion.

King stressed that the opinion did not deal with fishing access to streams crossing federal or tribal lands.

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Follow Barry Massey on Twitter at https://twitter.com/bmasseyAP

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