Attorney general goes to court, and to the water, to stop river fencing

State Attorney General Raúl Torrez ventured to the Pecos River on Tuesday in a legal campaign targeting private landowners who use physical barriers and threats to keep the public off the river.

Torrez’s office is asking a San Miguel County judge to direct a group of about 10 property owners whose land abuts the river to remove all physical barriers that deny public access to the Pecos River. A lawsuit filed by the AG on Tuesday also asks that property owners be compelled to remove any signs stating that use of the waterway is trespassing.

Torrez said stream and river barriers like those found on the Pecos River have been erected elsewhere in the state, despite a state Supreme Court ruling last September that reiterated that the public has a right to recreate and fish in public waters, including wading and walking on privately owned beds beneath the water. The court stressed that the public can’t trespass on private land to get to or from the public water.

“My hope is that we have signaled very clearly our intention to engage and file a civil action for anyone who continues to refuse to abide by the new Supreme Court ruling,” Torrez told the Journal.

The U.S. Supreme Court earlier this year declined to hear an appeal of that ruling, so Torrez said, “it’s final and is binding law.”

Torrez traveled Tuesday morning with AG investigators and others to look at an example of a fence blocking public river access. An AG spokeswoman said the group traveled to a parcel of state land for the viewing.

Torrez said he hopes the new legal case, assigned to chief state District Judge Flora Gallegos of Las Vegas, N.M., will act as a “deterrent” to other property owners.

“Unfortunately, there are still people who haven’t complied with the law. We are taking this step to demonstrate our willingness to make sure that these waterways are open and accessible to the public.”

Rick Jenkins, who said he owns an acre and a half of land that abuts the Pecos River, told the Journal he wasn’t removing his fence across the river until he has a notification in writing. He also plans to meet with AG officials in Santa Fe along with some of his neighbors.

“Me taking my fence down is like unlocking the door to the house. Fences are like locks,” Jenkins said, adding, “This is going to be a long, drawn out process.”

Jenkins said he heard about the Supreme Court ruling, but added, “they haven’t sent me a letter. And (the state Department of Game and Fish) isn’t going to do it.” He said he has had fencing on the river for years.

“The fence is there to keep non-law abiding people out, not fishermen,” he said. “It’s everybody’s water until somebody gets hurt.”

Deputy Attorney General James Grayson at an Aug. 7 meeting of the legislature’s interim Water & Natural Resources committee voiced a different concern — over the safety of members of the public who might try to float, boat or otherwise travel down New Mexico rivers and waterways.

“Our focus right now is on public safety, and there are some serious public safety risks with some of these fences,” said Grayson.

The AG’s civil complaint asks the judge to keep the 10 sued property owners from “placing barriers across the river, from threatening baseless legal action and from making threats of violence against New Mexico seeking to enjoy their right of access.” The lawsuit also seeks a ruling that the use of threats and other ways to deprive the public access of the river violates the state constitution.

The lawsuit singled out property owner Erik Briones, who is alleged to be directly blocking access to the Pecos river with six feet tall fences laced with barbed wire and concertina wire. Briones couldn’t be reached for comment on Tuesday.

Michael Sloane, director of the state Department of Game and Fish, told the legislative committee in August his agency isn’t taking any enforcement action against property owners with barriers on the waterways “because we don’t have authority over fencing.”

“There’s a landowner near Roswell we have spoken to on multiple occasions who doesn’t have any interest in removing (his fence), and we are struggling to figure out how we could force him to,” Sloane said.

The Supreme Court’s ruling states that “the public has a right to recreate and fish in public waters and that this right includes the privilege to do such acts that are reasonably necessary for the enjoyment of such right.” The Attorney General’s lawsuit states that means a person “can touch the stream beds and banks as reasonably necessary to fish and recreate but cannot go beyond the stream or bank to exit the stream or river over private land.”

Under the ruling, Sloane said, there’s no definition of what is “reasonably necessary.” Sloane told the committee the Supreme Court ruling, which relied on a past ruling, the state Constitution, and a 1907 law, needs clarification from the legislature so it can be more easily enforced.

Committee member state Sen. Antoinette Sedillo Lopez, D-Albuquerque, told Sloane, “Saying that you don’t believe you have authority over fences is not addressing the overall mission of your agency and what you are supposed to do to protect public land.”

State Rep. Jack Chatfield, R-Mosquero, told the committee that most of the streams in New Mexico are fenced to keep livestock from straying.

“Not every law in this state can be created around making life easy for one group and taking advantage of another group that bought and paid for their land,” he said.