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Senators weigh in on stream access

Rafters navigate the Rio Grande north of Taos in April 2019. U.S. Senators Martin Heinrich and Tom Udall this week urged the New Mexico Game Commission to repeal a controversial stream access issue rule. (Eddie Moore/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – New Mexico’s two U.S. senators are wading more deeply into a stream access debate that’s been simmering for years.

U.S. Sens. Martin Heinrich and Tom Udall, both Democrats, this week urged the state Game Commission to repeal a 2017 rule that allows private landowners to restrict public access to water flowing across their land in certain circumstances.

In an interview, Heinrich said the rule – if allowed to stand – could lead to barbed wire being strung across parts of the Rio Grande, the Gila River and other New Mexico waterways.

“At a time when New Mexico is trying to assert its outdoor recreation economy, this case has the potential to send exactly the wrong message to the rest of the world,” Heinrich told the Journal.

Supporters of the rule, such as the Western Landowners Alliance, say it protects sensitive streambeds, and enables habitat restoration work on private property.

The rule’s opponents, including the New Mexico Wildlife Federation and a coalition of fishing and rafting groups, label it an effort to keep recreationists out of public waters.

Those groups have petitioned the state Supreme Court to overturn the rule, and Heinrich said he plans to intervene in the case in support.

In addition, Game and Fish Director Michael Sloane has asked a state judge for clarity. Sloane is represented by two lawyers on Gov. Michelle Lujan Grisham’s staff, who wrote in the court filing that the director is “in the untenable position of enforcing competing and undefined legal rights.”

In 2015, the Legislature made it illegal to walk or wade onto private land through non-navigable public water, or access public water by way of private land without permission.

The New Mexico Game Commission then created a rule based on the law. Landowners can seek commission approval to certify waterway portions on their property as non-navigable.

The commission has approved five applications. Some landowners mark the affected waterways with riverside signs; others have strung wire or fencing across the waterways.

In July 2019, the new commission placed a moratorium on the rule.

Then-Chairwoman Joanna Prukop cited constitutional concerns as reason for the moratorium. She was not reappointed to the commission by the governor after her term expired in December. Prukop told the Journal that her ousting was directly tied to the non-navigable waters controversy, referring to it as a “bad rule based on bad law.”

But many landowners, especially in northern New Mexico, say the rule should stay.

At the commission’s August meeting in Santa Fe, one Tererro resident said repealing the rule was a “good way to get the public and landowners fighting.” Attendees cited issues such as trespass and littering as reasons the rule should remain.

In November, the commissioners officially asked Sloane to amend or repeal the rule. New Mexico Attorney General Hector Balderas said his office would help find a solution that respects rights of landowners and fishermen.

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