Stream access debate before AG

A program that allows landowners in New Mexico to bar access to streams is on hold. Above, the Pecos River flows through Pecos. (Eddie Moore/Albuquerque Journal)

Copyright © 2019 Albuquerque Journal

SANTA FE – A program that allows certain New Mexico property owners to ban uninvited anglers from fishing in streams running through their land may not be a keeper.

Under the state Game and Fish Department’s program, private landowners have been able to apply for a certification making non-navigable waterways on their land off-limits to the public.

The state Game Commission, whose new members were recently appointed by Gov. Michelle Lujan Grisham, last week voted to temporarily halt the program for up to 90 days, due to concerns that it may lack the authority to set state water policy.

The development is the latest chapter in a decadeslong dispute over public access to streams that flow through private property in New Mexico.

The seven-member commission is now waiting for guidance from Attorney General Hector Balderas before determining its next step. A spokesman for the AG’s Office said Tuesday that an expedited review of the legality of designating certain streams as private is underway.

During the 90-day moratorium, the five applications that were approved last year – for land holdings on the Pecos, Chama and three other rivers – will not be scrapped, but members of the public caught fishing or wading on the certified waterways in question will be subject to only warnings, not possible penalties for trespassing.

“I’m hoping the (attorney general’s) opinion comes across with some clear language that will help us determine what the proper way to go forward is on this issue,” Game Commission Chairwoman Joanna Prukop said during last week’s meeting in Socorro.

Most recently, former Attorney General Gary King issued a nonbinding opinion in 2014 that anglers can legally fish in water that runs through private property as long as they don’t trespass on the land.

That opinion reversed decades of tradition and led to 2015 legislation, signed into law by then-Gov. Susana Martinez, that barred recreational users from walking or wading onto private property through “non-navigable public water” without written permission.

Backers of that law, including ranchers and fishing lodge owners who have land on both sides of rivers, have described the issue as being primarily about private property rights.

Game Commission member Gail Cramer of Mayhill, near Cloudcroft, spoke during last week’s meeting about anglers leaving garbage and ignoring fishing rules on her property. She said she eventually decided to withhold permission.

“It has been nothing but a nightmare,” she said.

However, critics of the 2015 law say it goes against a provision in the state Constitution that all unappropriated water in New Mexico belongs to the public.

They have also objected to private landowners buying big tracts of property along the Pecos and other rivers, posting no-trespassing signs and, in some cases, setting up fences across streams.

“This is a golden opportunity for the state Game Commission to once again be the voice of all New Mexicans and to uphold the rights spelled out so clearly in our state Constitution – that all waters of the state are owned by the public and open for recreational use, provided we don’t trespass across private land to reach them,” said Joel Gay, chairman of the New Mexico chapter of Backcountry Hunters & Anglers.

The Game Commission will hold its next meeting on Aug. 22 in Santa Fe.

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