N.M.’s private waterways may reopen to recreationists
Game Commission reconsidering rule that allowed property owners to bar access
The New Mexico Game Commission this week handed fishermen and other recreational boaters at least a partial victory by temporarily cutting bait on a 2017 program that gives private property owners say over whether the public can access waterways on their land.
The seven-member commission, which sets hunting and fishing regulations, is appointed by the governor, with no more than four members from the same political party.
The previous commission, appointed by then-Gov. Susana Martinez, implemented a program in 2017 that allowed landowners to certify rivers and streams that cut through their property as “non-navigable” and subject to criminal trespass for people hunting, fishing or recreating on those waters — unless they received written permission from the landowner.
The current commission, appointed by Gov. Michelle Lujan Grisham, decided Wednesday to impose a 90-day moratorium on the rule until it can receive advice from Attorney General Hector Balderas as to whether it is legal under state law.
This latest fracas is but one link in a chain of complex issues throughout the West dealing with water rights, fishing rights, stewardship of the ecosystem, and public versus private land. They are matters that ranchers, environmental advocates, hunters and fishermen have been fighting over for decades.
“The immediate past Commission unfortunately abandoned its license-buying anglers in favor of the special
interests,” New Mexico Wildlife Federation president John Crenshaw and executive director Jesse Deubel wrote in a June 21 letter to the commission arguing the rule should be rescinded.
Waterways such as the Rio Chama, the Pecos River, the Cimarron River and tributaries of the Rio Grande, as well as other fishing areas throughout the state are all potentially affected by the commission’s ultimate decision, said Wildlife Federation conservation director Ben Neary. The Wildlife Federation advocates for hunters and fisherman, and supported this week’s move.
Neary said currently some prime fishing areas that cut through the property of private ranches in the state are routinely fenced off. In some cases, barbed wire is run across the river, he added.
Five properties have so far been granted “non-navigable” certifications by the Game and Fish Department. The commission voted Wednesday that during the moratorium, violators would only be issued warnings.
Trout Stalker Ranch on the Chama River is one of the properties that was granted a certification, barring the public from the central, shallow portion of the river on the ranch’s 1,500-acre property. The northern and southern sections of the river within the property are still open to the public.
Ranch owner Dan Perry said Saturday that he “absolutely” supported the current commission rule. His working ranch just south of the Colorado border also has guesthouses for $500 to $600 per night where visitors can fly fish privately for rainbow and brown trout.
Perry said the ranch had made significant financial investments in restoring and maintaining the river habitat, and went through a “strict” monthslong application process to get the commission certification. As recently as Friday, he said, trespassers had damaged the area and killed many fish.
“It’s really hard on the environment,” Perry said. “And it’s our private property, too.”
The current rule describes “non-navigable” as meaning a waterway that at the time of New Mexico’s 1912 statehood was not used “as a highway for commerce over which trade and travel was or may have been conducted in the customary modes of trade or travel over water.” Simply put, Perry said, that meant a river was too shallow to boat.
In a presentation before the commission Wednesday, fisheries chief Kirk Patten noted New Mexico’s Constitution provides that “the unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.”
But there have been decades of court rulings and legal opinions since then trying to interpret it.
In 2016, Balderas weighed in on a 2015 state law that prohibited individuals participating in outdoor recreational activities from walking or wading onto private property through non-navigable public water, or accessing public waters via private property without landowner consent.
Balderas’ opinion was that the law was constitutional as long as it was interpreted to “allow the use of streams and other public water that are accessible without trespassing on private property for fishing and other recreational activities.”
Commissioner Gail Cramer — who represents several counties in Eastern and southeastern New Mexico — said at Wednesday’s meeting she owned property that contained a river and when she bought it, decided to open the property to the public for fishing.
“We spent years and years cleaning it out so people could access it fishing, and we started letting fishermen come in, if they asked permission, and told them the rules, and let them fish, and it has been nothing but a nightmare,” Cramer said.
Cramer said fishermen were simply not listening.
“We ask them to use barbless hooks, we ask them to do catch and release of browns,” she said, “All we’ve gotten is they take all the big browns; they leave their garbage.”
Cramer said they then decided to only allow fly fishermen, but “that’s been worse. If we had $5 for every time that we had to repair a fence that the fly fishermen cut, I’d be a rich woman.”
About a year and a half ago, Cramer said she decided not to allow fishing on her property any longer.
There were also questions raised by some, including Commission Chair Joanna Prukop, about whether the commission should have authority over water issues and regulation of nonnavigable waters. Prukop recommended the moratorium “until we have more clarity.”
“Obviously, it’s very complex and, I would say, in some cases an emotional issue,” said Commissioner Jimmy Bates, who represents Bernalillo County. “I don’t know if we’ll solve it or not, but I’ll be looking forward to the attorney general’s opinion on this, and I think that will help guide us on how we want to move forward.”
“unappropriated water natural The of stream, every perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.” New Mexico Constitution