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Game commission delays stream access decision

This April 2020 photo shows a fence running through the Upper Pecos River between Cowles and Pecos. The waterway segment was previously certified as non-navigable by the New Mexico Game Commission. On June 18, the commission deferred a decision on five non-navigable waterway applications. (Courtesy of Adobe Whitewater Club)

ALBUQUERQUE, N.M. — A last-minute ethical question prompted the New Mexico Game Commission to delay a decision scheduled for Friday on whether five ranches can restrict public access to waterways that run through their private land.

The issue has sparked fierce debate over who may access water on private property.

Commission Chairwoman Sharon Salazar Hickey said during the meeting that the group had “received information” about a potential conflict of interest concerning Salazar Hickey’s daughter, who is studying for the bar exam and was offered a position in tax practice with the Modrall Sperling law firm.

That firm represents the five applicants the commission had been prepared to consider.

Salazar Hickey said she doesn’t believe there is a conflict. But she advised the group to wait on the state Attorney General’s guidance.

“There are certain matters that cannot be rushed,” she said.

The commission will now consider on Aug. 12 whether to issue nonnavigability certificates to Rancho Del Oso Pardo, River Bend Ranch, Chama III or Canones Creek Ranch, Fenn Farms Ranch, and Three Rivers Ranch.

The certificates would essentially close the waterway segments in Chaves, Lincoln, Otero, Rio Arriba and San Miguel counties to the public.

Commissioners said they were surprised by, but supportive of, the chair’s decision.

“I am disappointed that this has to happen like this,” Commissioner Tirzio Lopez said. “We came prepared. We’ve lost sleep. Some of us have traveled far from across the state to see what’s going to happen today.”

Game Commission consideration of the applications is “long overdue,” Marco Gonzales, a Modrall Sperling attorney who is representing all five applicants, told the Journal.

“Under New Mexico law, the owner of a stream or river bed already owns that land and has the right to exclude trespassers,” Gonzales said. “A certificate of nonnavigability simply helps to notify the public of the need to obtain written permission before walking or wading, remove any ambiguity about trespass, and assist with law enforcement in the event of unlawful trespass.”

Groups statewide are awaiting a New Mexico Supreme Court ruling on whether the Game Commission nonnavigability rule is constitutional.

Salazar Hickey referenced the pending ruling as one reason to defer the commission decision.

The landowners sought a federal court’s intervention in the meantime.

Albuquerque-based U.S. Magistrate Judge Steven Yarbrough ruled in March that the commission must hold a hearing and issue a decision on the pending applications by September.

The commission responded by setting the June 18 hearing date.

“This (delay) isn’t anything other than a lack of courage on the part of the commission,” said Jason Wiebenga with Wildcat Environmental Services, which does fish management for Fenn Farms. “You all have the duty to act.”

The state constitution outlines that “the unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico” belongs to the public.

Steve Polaco, the Merced de los Pueblos de Tierra Amarilla president who owns land along a Chama tributary, said closing some waterway access threatens centuries-old traditions.

The Tierra Amarilla land grant community in northern New Mexico has been a focal point in the debate over who can wade up streambeds or paddle through waterways.

“We protect the land. We are the stewards of the land,” said Polaco, a member of the state land grant council. “Fishing throughout our existence here was not a sport. It was a matter of survival. People who try to privatize what’s public — it’s just plain old unconstitutional.”

Some paddlers and boaters may never leave the water when streams and rivers are flowing high.

But many anglers walk on streambeds, which the landowners say is private property.

The commission granted five certificates for nonnavigable waterways before a 2019 moratorium to reconsider the rule.

Some landowners installed fences and “no trespassing” signs through the river segments.

Stream access is rooted in private property rights, said Dave Kenneke, wildlife committee chairman of the New Mexico Cattlegrowers Association.

“Many of these landowners have spent years and years and countless dollars actually working to improve streams and riparian zones,” he said. “The constitution says water belongs to the public, but it doesn’t say anything about the land underneath the water. Allowing people access to wade up these streams, to me that is a huge threat to our water systems.”

Ranching and outdoor guide groups lobbied for the 2015 state amendment to the Department of Game and Fish’s trespass law.

“No person engaged in hunting, fishing, trapping, camping, hiking, sightseeing, the operation of watercraft or any other recreational use shall walk or wade onto private property through nonnavigable public water or access public water via private property unless the private property owner or lessee or person in control of the private land has expressly consented in writing,” the new law reads.

In 2017, the previous commission created an application process for landowners to certify waterways on their land as nonnavigable.

The process hinged on whether the waterways were considered navigable at the time of New Mexico statehood.

But the board voted in 2019 for a moratorium on the nonnavigability rule, and urged Game and Fish Director Michael Sloane to help amend or repeal the regulation.

Then-chair Joanna Prukop had questioned whether the rule was constitutional.

Gov. Michelle Lujan Grisham did not reappoint Prukop after her term expired at the end of 2019, citing “policy and style” differences.

Prukop, who was replaced by Salazar Hickey, told the Journal at the time that stream access was the reason for her ousting.

State outdoor recreation groups argue that the commission rule and certificates violate a 1945 state Supreme Court ruling that upheld the public’s right to water access.

Norm Gaume, an Adobe Whitewater Club board member, said the state should find a way to preserve private land without “privatization or monetization.”

“The barricades that have vertical pipes and barbed wire woven through them and ‘no trespassing’ signs that go far beyond what the commission-mandated signs are, that’s just denying paddlers of their constitutional rights,” Gaume said. “All because, in this particular case, a rich ‘oil-and-gas’ Texan purchased streamside property, and they wanted the river for their exclusive use.”

U.S. Sen. Martin Heinrich had urged the commission to wait on a ruling from the state’s highest court.

“Granting applications … would amount to gifting to the wealthy few control over one of New Mexico’s greatest natural assets at the expense of the New Mexican public,” the New Mexico Democrat wrote in a June 3 letter.

Theresa Davis is a Report for America corps member covering water and the environment for the Albuquerque Journal.

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