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The New Mexico Supreme Court on Tuesday agreed that a Game Commission rule that allows landowners to restrict access to water that flowed through private property is unconstitutional.
The ruling in the stream access case represents a victory for kayaking and fishing groups seeking to preserve public access to the state’s waterways, and a defeat for landowners who saw the rule as key to protecting private property rights.
Chief Justice Michael Vigil said the court unanimously agreed that the rule is contrary to a “constitutional reading” of a 2015 state law.
The previous state Game Commission used that law to issue five non-navigable water certificates to landowners – some of whom posted signs and built fences through the waterways.
“The court will order an issuance of order declaring that the certificates issued pursuant to the rule are void,” Vigil said.
Those certificates are on the Rio Chama, Pecos River, Mimbres River in Grant County, Alamosa Creek in Socorro County and Rio Penasco in Chaves County.
Justices reached a unanimous decision after 15 minutes of deliberation and an hour of oral arguments from attorneys.
Seth Cohen, an attorney for the Adobe Whitewater Club and other groups that sought to overturn the rule, said “the public’s constitutional right to make recreational use of the public water includes an incidental right” to touch streambeds or riverbanks.
“It is nearly impossible for most stretches of most rivers in New Mexico for the public to enjoy that public use right guaranteed in the constitution with the rule in effect,” Cohen said.
A spokesperson for Gov. Michelle Lujan Grisham said the ruling “provides needed clarity on issues of stream access.”
“We are glad to see the resolution of this case,” Nora Meyers Sackett said.
Several ranchers and landowner groups had argued that the rule should stand as a way to prevent trespass and preserve sensitive streambeds.
“This isn’t limited just to fly-fishing,” landowner attorney Jeremy Harrison said. “The right that the petitioners are seeking is a broad recreational right.”
The Western Landowners Alliance said that the rule had provided clarity as to what authority landowners and law enforcement had to protect specific stream segments.
Without that clarity, the organization said, “disputes and conflicts will undoubtedly continue.”
The coalition said landowners have helped to restore fish populations and protect streams on their property from overuse.
“As a result of development, recreation and intensive agriculture, we continue to lose wildlife habitat and wildlife species at an alarming rate,” WLA said in a statement. “Yet people continue to demand more and more access to places where wildlife have traditionally sought refuge, including on private land.”
Justice Shannon Bacon took issue with landowner arguments about limits to the public’s right to use water.
“If you can’t walk on the streambed, and your use and enjoyment protected by the constitution is … your ability to fly fish – unless you can figure out how we can all walk on water, how is that not contrary to the use and enjoyment of the public?” Bacon said.
U.S. Sen. Martin Heinrich called the decision “a pretty exciting day in New Mexico history.”
Heinrich and former Sen. Tom Udall had filed a “friend of the court” brief advocating for the court to strike down the rule.
“This is a huge victory for people who care about our history and our culture and our natural resources,” Heinrich said. “I want to thank everyone who made this possible to make sure that public waters stay in public hands.”
The outgoing state Game Commission in 2017 and 2018 crafted the process for non-navigable water certifications and approved five permits that will now be invalidated.
But commission attorney Aaron Wolf told the court that the current board had no intention of using the rule, as the panel demonstrated last summer when it rejected five additional landowner applications for non-navigable waterway certificates.
Landowners had secured a federal court order that forced the commission to make a decision on the applications, even though the panel had raised concerns about if the rule was constitutional.
“This whole process has exploded in the face of the commissioners,” Wolf said of the panel’s recent resignations and removals because of the stream access debate.
When Justice Bacon asked if the issue is one of “great public importance,” Wolf said it’s a matter of “balancing the public’s right to these waters versus private ownership of land.”
“I think private ownership of land that covers waterways is increasing dramatically in New Mexico,” he said. “Many out-of-state people are buying up large parcels of property.”
Vigil said the court will issue an opinion outlining full reasoning for the ruling.
Theresa Davis is a Report for America corps member covering water and the environment for the Albuquerque Journal.
