Rule is attempt to let state privatize your waters - Albuquerque Journal

Rule is attempt to let state privatize your waters

The Game Commission meeting June 18 was a fiasco. Surprise and confusion were evident on faces including all the commissioners’, except for Chair Salazar Hickey who caused the commotion. In an attempt at transparency, the chair chose an awkward way to disclose that her daughter is employed by the law firm that represents all applicants attempting to close public waters to New Mexicans. Yet she asserted she could be impartial about the five contentious applications before the commission.

At her direction, this potential conflict of interest will be studied and a report issued before the commission’s August meeting. The N.M. Governmental Conduct Act (10-16-3 NMSA 1978) clarifies that “ethical principles of public service” means commissioners must treat their positions as a “public trust” and “shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.” The chair thus raised serious questions about trust and confidence in her.

Anyone following this issue since 2019 when the current commission took it up and I was chair may now understand there is only one fundamental question of importance: is Rule 19.31.22, the Landowner Certification of Non-Navigable Water Rule (NNW), constitutional under Article XVI Section 2 of the state Constitution? All other claims, arguments and justifications are irrelevant. Like me, many including the applicants’ attorney and the governor have stated this matter will only be resolved in court.

A spotlight is now on the New Mexico Supreme Court where a Writ of Mandamus was filed more than a year ago on behalf of anglers and boaters to challenge the constitutionality of Rule 19.31.22. We all await a ruling. How soon might it come?

A second spotlight is on the governor. The recent untimely death of Commissioner David Soules leaves a vacancy intended to be filled by a conservationist with “a demonstrated history of involvement in wildlife and habitat protection issues and whose activities or occupation are not in conflict with wildlife and habitat advocacy” (17-1-2 NMSA 1978). Will a seventh commissioner be appointed by August?

Lastly, a third spotlight is on the attorney for all NNW certification applicants. He was highly upset after the chair’s actions and protested the delay. He has used the courts a number of times to force the issues.

Things have gotten very messy since the governor wrongfully removed me as chair in December 2019. I know she was trying to keep me from opening the NNW Rule for amendment or repeal after I asked the attorney general for advice on its constitutionality, which officially came back stating that Rule 19.31.22 “is unconstitutional and unenforceable.”

Rule 19.31.22 is an ill-conceived attempt to privatize New Mexico’s public waters. It’s predicated on a failed legislative attempt in 2015 to give the Game Commission extraordinary powers over New Mexico waters. As introduced in 2015 SB 226 was stripped of all substantive language in its very first committee hearing. Eventually the law (17-4-6C ) signed by then-Gov. Susana Martinez contained only one small relevant paragraph essentially restating the state’s trespass law. Rule 19.31.22 is a dishonest administrative attempt to accomplish what couldn’t be accomplished legislatively. I believe it must be repealed or declared unconstitutional, but I, too, know that the courts will decide.

Joanna Prukop is former Secretary, NM Energy, Minerals & Natural Resources Department; former Division Chief, N.M. Department of Game & Fish; three-term appointee, President Obama’s Wildlife & Hunting Heritage Council; founding member, Sportsmen & Sportswomen for Biden; professional member, Boone & Crockett Club.


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