New Mexico denies landowners’ push to restrict stream access

ALBUQUERQUE, N.M. (AP) — New Mexico regulators have rejected the requests of landowners who sought to restrict public access to streams and rivers that flow through their properties, marking just the latest development in a legal battle that likely won’t end until the state Supreme Court weighs in.

The state Game Commission voted on Thursday to deny the applications, citing language in the state Constitution that implies all waters in New Mexico belong to the public.

The decision was welcomed by outdoor groups and conservationists. However, an attorney for the landowners argued that his clients’ private property rights were being violated.

While the debate over stream access has been ongoing across the West for years, the New Mexico Supreme Court could provide more clarity once it rules on a pending petition filed by a coalition of anglers, rafters and conservationists.

The coalition contends that the public has the constitutional right to fish, boat or use any stream for recreation so long as they did not trespass across private land to get there.

Some of those who addressed the commission Thursday pointed to previous opinions from the state attorney general’s office and a 1945 ruling by the state Supreme Court that found holding title to stream-bed property does not limit the right of the public to “enjoy the uses of public waters.”

Advocates of private property rights have warned that if waterways are opened up, property values will decline and there would be less interest by owners to invest in conserving tracts of land along streams. Some fishing outfitters and guides have said their business will be adversely affected.

Marco Gonzales, who represents the landowners, said the case involves the intertwining of constitutional property rights and public rights to the water. He said state lawmakers struck a balance several years ago by codifying the need for written permission from a landowner.

Gonzales argued that one constitutional right can’t supersede another and that the question before the commission was narrowly focused on whether the stream segments in question were navigable at the time New Mexico became a state in 1912.

Those who have fought to keep access open have argued that the Game Commission doesn’t have the authority to determine whether a stream or river was navigable.

U.S. Sen. Martin Heinrich, a New Mexico Democrat, is among those who say public access should not be limited, regardless of whether streams are classified as non-navigable. Many waterways in New Mexico and elsewhere in the Southwest flow intermittently and depend on snow or storm runoff.

Heinrich commended the commission for its decision.

“Accessing public streams for fishing, boating and other activities has long been enjoyed by generations of New Mexicans and is part of our state’s culture and thriving outdoor recreation economy,” Heinrich said.

The landowners will file appeals in district court, Gonzales said. He noted that an earlier federal court ruling that ordered the commissioners to act on the landowners’ applications made clear that waiting for the New Mexico Supreme Court to act was not a justified legal reason upon which to base their decision.

“That was blatantly disregarded by the commission,” he said.