An upstream battle - Albuquerque Journal

An upstream battle

A barrier closes off the Pecos River as it enters private property south of the Mora Campground north of Tererro. The New Mexico Supreme Court is set to hear oral arguments Tuesday in a case about a State Game Commission rule that allows landowners to certify waterways on their property as non-navigable to the public. (Eddie Moore/Albuquerque Journal)

Copyright © 2022 Albuquerque Journal

The New Mexico Supreme Court is set to hear oral arguments Tuesday morning in a case that will likely determine the constitutionality of a State Game Commission rule that certifies waterway segments as off-limits to the public.

The non-navigable water issue has sparked fierce debate over the intersecting constitutional rights of private property and public water access.

Adobe Whitewater Club of New Mexico, the New Mexico Wildlife Federation and the New Mexico Chapter of Backcountry Hunters and Anglers first petitioned the state’s highest court in 2020.

They are asking the court to strike down the commission rule and invalidate the five waterway segment certifications that were issued under the rule.

“According to its proponents, the rule closes to public use only the privately-owned riverbeds, themselves, and not the overlying river,” the groups’ attorneys wrote in court documents. “But, as a practical matter, on nearly every segment of every river or stream in New Mexico, a prohibition on public use of the riverbed is a prohibition on the public’s use of the river.”

The groups allege that the rule violates New Mexico’s constitution which stipulates water belongs to the public.

Changing state law

The Adobe Whitewater Club v. New Mexico State Game Commission case is rooted in a 2015 state law.

That year the Legislature passed a bill sponsored by former Sen. Richard Martinez.

The legislation added a provision to state law stating that, “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 non-navigable public water or access public water via private property unless the private property owner or lessee or person in control of private lands has expressly consented in writing.”

Lawmakers left it to the Game Commission to craft a rule for certifying waterways as non-navigable.

The outgoing commission used the new rule to approve five certifications on the Chama and Pecos rivers in 2018.

Those certifications allowed the landowners to cordon off the segments from public access by posting signs.

But the new commission in 2019 asked the New Mexico Game and Fish director to amend or repeal the rule, then paused those potential changes because of pending litigation.

Landowner applicants sought a federal court order, which compelled the commission to make a decision on five pending requests.

Waterways being considered included river segments in Chaves, Lincoln, Otero, Rio Arriba and San Miguel counties.

The panel rejected the applications during an August 2021 meeting in a packed Roundhouse meeting room.

At the meeting, Commissioner Tirzio Lopez prefaced his vote by reading the section of New Mexico’s constitution that declares “unappropriated water … to belong to the public.”

“I stand by the constitution,” Lopez said.

Chair Sharon Salazar Hickey abstained from the vote, citing the pending Supreme Court case.

Public on private property

Landowners – many of them with large ranches – say the rule allows them to enforce private property rights and protect sensitive riverside areas.

A cable and sign closes off the Pecos River as it leaves private property. Non-navigable water has sparked a debate between landowners and the State Game Commission over public use of private riverside areas. (Eddie Moore/Albuquerque Journal)

Ranchers whose applications were denied at the August meeting, along with several other livestock and outfitters groups, are listed as intervenors in the court case.

The groups’ attorneys say overturning the rule would “transfer ownership of valuable riparian property to the public.”

“Stripping private landowners of their property is not appropriate under any circumstances, but it is certainly inappropriate in the context of a challenge to an administrative rule that has no bearing on property rights, river access, or the other interests petitioners claim they are trying to protect,” the landowner attorneys wrote in court filings.

The ranch lawyers also contest the recreation groups’ assertion that the restricted waterway segments have essentially created private fisheries.

“The public is free to fish over private land while floating,” the lawyers wrote. “The public is free to fish up or downstream of private land, and the public is free to fish, walk, wade or make any other use not prohibited by law on the hundreds of miles of public lands over which waters flow.”

New commission

An all-new commission appointed by Gov. Michelle Lujan Grisham in spring 2019 appears to have shifted the long-standing debate.

According to Supreme Court documents, the current commission “generally agree(s) … that the rule violates the state constitution.”

“In three years or less, there will be yet a new commission constituting different commissioners that could interpret the rule in another way,” Game Commission lawyers wrote. “The commission requests that the Supreme Court issue an opinion so that the commissioners could hold a new rule-making consistent with the opinion.”

The stream access debate has also shaken up the commission itself.

Former chair Joanna Prukop, who raised concerns about the rule’s legal implications, was removed by Lujan Grisham in 2020.

“This is a bad rule based on bad law,” Prukop told the Journal after her removal.

The governor removed Jeremy Vesbach in January.

A cable and sign closes off the Pecos River as it leaves private property. (Eddie Moore/Albuquerque Journal)

He voted to reject the latest applications because he said the segments did not meet the standard of being non-navigable waterways at the time of statehood.

Vesbach also said the barriers constructed in some of the certified river segments are dangerous.

The Governor’s Office said policy and style differences spurred the removals.

But Prukop and Vesbach both said the reason for their ousting was because their positions on stream access clashed with those of political donors.

The owner of Trout Stalker Ranch in Chama donated about $30,000 to Lujan Grisham in the 2018 election cycle with individual and business contributions.

The rancher has also donated thousands to committees and legislators on both sides of the aisle.

Trout Stalker Ranch, a northern New Mexico fishing retreat, received a non-navigable certification for 0.7 river miles of the Rio Chama before the Game Commission paused the process.

The ranch has targeted the segment for habitat restoration and water quality projects.

The landowner groups say similar private conservation projects could be at risk without the non-navigable certifications.

Where rights begin, end

Attorney General Hector Balderas has asked the state Supreme Court to define where the “right to access public waters ends and the right to exclude from private property begins.”

“Where constitutional rights intersect, only this Court can definitively resolve the extent of those rights,” Balderas wrote in an amicus brief.

Balderas noted that “the parties appear to agree” that briefly touching a riverbed or bank while boating through a non-navigable waterway doesn’t necessarily constitute trespass.

“But important questions remain unsolved,” he wrote. “May someone wade upstream in a river from public property into private property to fish? May people disembark from their rafts and kayaks to get around obstacles and low-water areas in New Mexico’s often parched waterways?”

Balderas said a definitive decision on the rule would clarify where the public can fish and float the river, determine which property landowners can “police and protect,” and guide state fish protections.

Landowners have several cases pending in lower courts regarding the stream access rule and the Commission rejections.

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

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