Non-Navigable Waters Rule

New Mexico Fish and Game Acts on Non-Navigable Waters Rule
The New Mexico Fish and Game Commission (NMFGC) has voted to amend or repeal an agency rule allowing landowners to certify non-navigable waters as private property, subjecting anglers wading these waterways to a trespass statute.

Days before the vote, the state Attorney General’s office (AG) issued its opinion that the commission can’t legally block the public from waterways that cross private property, as long as people don’t trespass across that property to reach the waterways. In 2015 (by a one vote margin) state legislators amended a trespass law, essentially barring the public from wading in streams that run through private property without written permission from the landowner. 

Three months later the NMFGC called an “emergency meeting” to allow a hearing on the rule, which limited public comment to 10 days, rather than the 30 days set by the Legislature. In 2017 the Commission began allowing landowners to certify streambeds as “non-navigable,” and to fence, and declare the streambed as private property.

Five certification applications have been issued by the Commission since adoption of the rule. One certification was issued to the Texas owner of the Rio Dulce Ranch in San Miguel County, privatizing a segment of the upper Pecos River. Another certification was issued to Chama Troutstalkers, owned by Dan Perry, and ended public access to a segment of that northern New Mexico river. Perry owns a ranch and outfitting business that offers fishing trips there for about $500 a day. 

An organization he founded, the Habitat Conservation Initiative, spearheaded the effort to pass the 2015 change to state law.Zane Kiehne is also seeking certification for his Texas-based Z&T Cattle Company on the Mimbres River in the southwestern part of the state. Kiehne also gained certifications for waterways running through separate properties on the Alamosa and Penasco rivers. The bill’s supporters contend allowing public access to streams on private property could disturb riparian habitat improvements that landowners had invested in. Opponents say the law, and commission rule, are vague and unconstitutional, and that courts should decide whether streambeds are public.

The New Mexico Wildlife Federation, Backcountry Hunters and Anglers, New Mexico Avid Anglers, Dona Ana County Associated Sportsmen, Southwest Consolidated Sportsmen, Wild Turkey Sportsmen’s Association, River Reach Foundation, Adobe Whitewater Club, American Canoe Association, American Whitewater and the New Mexico River Outfitters Association are all seeking to overturn the law and game agency rule.

The “non-navigable” clause maintains that as long as a river or creek is considered navigable under New Mexico state law the public can float and access it, but the NMFGC’s rule has effectively removed that right on non-navigable waters.

Three Attorneys General have concurred that a 1945 New Mexico Supreme Court decision in “State Game Commission vs. Red River Cattle Co.” allows the public to utilize streams and streambeds where they run through private property, providing they don’t trespass onto private land from the stream.

Jesse Deubel, executive director of the New Mexico Wildlife Federation, said, “New Mexico anglers and sportsmen who rely on our public lands need a fair shake from the game department.” Attorney Marco Gonzales, who represents the landowners who had certified stretches of waterways, told the commission to let the issue be resolved by the Legislature and the courts.

Last July, when the Commission issued a 90-day moratorium on the certifications, Perry told “The Santa Fe New Mexican” trespassers had damaged the area he had posted and killed many fish.“It’s really hard on the environment,” Perry said. “And it’s our private property, too.”

“New Mexican families and landowners deserve access to our waterways,” said AG Hector Balderas. “I will be directing the commission to strengthen the process to protect private property rights and minimize trespass, while respecting access rights and outdoor activities of sports enthusiasts.” Gonzales said at a public heating recently, “This is an important constitutional issue about ownership of private property. New Mexico’s waters are public waters — you are able to float and fish, you just can’t wade, because of the streambed.” NMFGC Chairwoman Joanna Prukop said, “We were told by the state attorney that the rule was invalid, and our offices are subject to liability for enforcing it. We directed the department yesterday to enforce criminal trespass as they would on any other water in the state until we have resolved this rule.

”While the Commission did not set a timeline to produce a new plan, it could act on the directive at its January meeting in Las Cruces.—Etta Pettijohn