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The New Mexico State Game Commission on Friday officially overturned a controversial rule that had allowed private landowners to close off non-navigable waterways to the public, nearly six months after the state Supreme Court said the rule was unconstitutional.
On March 1, the state Supreme Court sided with kayaking and fishing groups who argued that the Game and Fish regulation illegally barred public access to streams and rivers.
The court found the rule was contrary to a “constitutional reading” of a 2015 state law amending the department’s trespass guidelines.
During court proceedings, Justice Shannon Bacon said the regulation went beyond the state law by restricting access to streambeds.
“The access to water is a public right – it’s a constitutional right,” Bacon said.
The commission nixed the rule that afternoon under an emergency process and Friday’s unanimous decision made it official.
The court has yet to release a full opinion on the decision.
That has created some murky waters for at least one landowner advocacy group.
Kerrie Romero, executive director of the New Mexico Council of Outfitters and Guides, accused Game and Fish of adopting an “egregious misinterpretation” of the court ruling.
In this year’s fishing regulations brochure, the department noted that the decision means that “all watercourses in the state, that can be legally accessed, are open for public recreational use.”
Game and Fish reminded anglers that “private property damage remains illegal.”
“Private property owners have rights, and landowners should not be forced to accept unlimited and uncontrolled numbers of trespassers just because their property includes a streambed,” Romero said.
She added that the court overturned the department rule, not the state statute.
Under the now-defunct rule, landowners with certified non-navigable waterways flowing through their properties could pursue criminal trespass charges for people who walked or waded in the streambeds.
The previous commission approved five certifications before issuing a 2019 moratorium to reconsider the rule.
Some certified landowners had blocked off streams with signs and barriers.
In 2021, the commission rejected five new applications.
The court ruling voided the original approvals.
Tensions over the stream access issue appear to have prompted the ousting of two commissioners, although the Governor’s Office has said they were removed because of policy differences.