Game Commission rejects landowners on stream access

New Mexico Game Commission Chair Sharon Salazar Hickey, right, and Commissioner Jeremy Vesbach consider non-navigable waterway applications at the Aug. 12 commission meeting in Santa Fe. The group rejected all five landowner applications up for consideration. (Theresa Davis / Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

The New Mexico Game Commission on Thursday rejected five landowner applications to certify waterway segments on private property as nonnavigable.

The stream access issue has for several years pitted private property interests against New Mexico’s constitutional provision stating that water belongs to the public.

Rancho Del Oso Pardo, River Bend Ranch, Chama III or Canones Creek Ranch, Fenn Farms Ranch and Three Rivers Ranch had applied to certify waterways on their properties as nonnavigable.

Certifications would have enabled the landowners to pursue criminal trespass charges against anglers and paddlers who wade and walk on streambeds of waterways that flow through private property.

Kerrie Cox Romero, executive director of the New Mexico Council of Outfitters and Guides, said the “disappointing” commission decision could further “cloud the general public’s understanding” of trespass laws.

David Gonzalez, left, and Michael Arias, both from Albuquerque, fish along the Pecos River near Tererro in June. (Eddie Moore/Albuquerque Journal)

“It is still illegal to walk or wade in a streambed to access fishing within private property without written permission from the landowner,” Romero said. “The vote that happened today did nothing to change that.”

The commission had granted five nonnavigable stream applications before issuing a 2019 moratorium to reconsider the rule.

Several certified landowners have blocked off streams with “no trespassing” signs and barriers.

The certification process stems from a 2015 state law that amended Game and Fish trespass rules.

New Mexico Wilderness Alliance attorney Logan Glasenapp said waterway restrictions harm recreational floating, fishing, hunting and hiking.

“Navigability has not and should not be the barometer for which the commission limits our constitutional rights,” Glasenapp said.

The rejected properties are located in Chaves, Lincoln, Otero, Rio Arriba and San Miguel counties.

Chairwoman Sharon Salazar Hickey abstained from voting on the applications.

“We are in litigation, and for that reason, we are waiting for a New Mexico Supreme Court decision,” Salazar Hickey said. “Therefore, I will abstain.”

Commissioner Jeremy Vesbach said he voted to reject the applications because he believes the segments do not meet the standard of being nonnavigable waterways at the time of statehood.

Vesbach also said that fences through waterways are a hazard.

“We’ve seen barriers erected that cause physical harm,” Vesbach said.

Marco Gonzales, the Modrall Sperling attorney representing the five applicants, said the panel’s decision was “arbitrary, capricious and contrary to law.”

Gonzales added that the applicants will be filing appeals in District Court.

“We will also be considering several other claims including violations of our clients’ civil rights and whether we should request from the Federal Court Judge that issued a decision in these cases whether Commissioners should be held in Contempt of Court,” Gonzales said in a written statement to the Journal.

A federal court had ordered the commission to issue a final decision on the applications by September.

The group delayed a decision at its June meeting.

At issue was a conflict of interest question concerning Salazar Hickey. The chairwoman’s daughter has been offered a position in tax law at Modrall Sperling.

Valerie Joe, an assistant state attorney general, said she had communicated with each commissioner about “conflicts of interest and their duties to report them.”

“The results of these communications is that no actual or real conflicts of interest were disclosed to me by any state game commissioner,” Joe said.

Commissioners’ final decisions differed from Game and Fish Director Michael Sloane’s recommendations on three of the five applications.

Sloane had recommended that Rancho del Oso Pardo, Fenn Farms and Three Rivers be stamped for approval.

During public comment, state Rep. Candy Spence Ezzell, a Roswell rancher and Republican lawmaker, had urged the panel to approve the landowner applications.

“I do have to remind you, it is the farmers and ranchers and rural property owners that take care of the state’s wildlife,” Spence Ezzell said.

Sen. Martin Heinrich, D-N.M., applauded the decision.

“Accessing public streams for fishing, boating, and other activities has long been enjoyed by generations of New Mexicans,” Heinrich said in a statement.

“It is part of our state’s culture and thriving outdoor recreation economy.”

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

 

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