Udall, Heinrich Defend New Mexicans’ Access to Public Streams

WASHINGTON – U.S. Senators Tom Udall (D-N.M.) and Martin Heinrich (D-N.M.) issued the following statement in support of New Mexicans’ right under the state constitution to access public surface waters:

“The New Mexico Constitution ensures that rivers, streams, and lakes in New Mexico ‘belong to the public’.  And, for 75 years, the New Mexico Supreme Court has recognized the public’s right to recreate, fish, and use these waters, including waters that flow through private lands. We support that right.

“The state constitution makes clear that the water of every natural stream belongs to the public; it doesn’t distinguish between ‘navigable’ and ‘non-navigable’ waters.  However, in 2017, in the final days of the Martinez administration, the State Game Commission passed a rule allowing landowners to prohibit public access to waters flowing on their lands if the waters are ‘non-navigable.’  Not only is that contrary to our constitution, it also impacts the vast majority of New Mexico’s streams, the majority of which – whether they flow all the time, intermittently, or just in response to rain events – are not ‘navigable’ and could be kept off limits to the public.

“The commission’s rule has upended anglers’, boaters’, and other recreationists’ right to access public streams, putting a halt to activities that have long been enjoyed by New Mexicans throughout the state, and drawn visitors from both near and far, contributing to our outdoor recreation economy. 

“We are long-time advocates for preserving New Mexico surface waters for recreational, wildlife, and environmental uses, and support legal interpretations of past New Mexico Attorneys General affirming the importance of our public waters. In 1998, when Udall was New Mexico’s Attorney General, he issued an opinion affirming that ‘instream flows’ for recreational, fish or wildlife, or ecological use were entitled to legal protection as a valid water right.  In 2014, then-Attorney General Gary King issued an opinion affirming the public’s right to fish and recreate in waters that flow on private lands, as well as landowners’ rights against trespassing on their lands. 

“The rule is before the Game Commission, and we urge that body to follow the constitution, New Mexico Supreme Court precedent, and prior Attorney General opinions, and repeal the rule. If not, lawsuits are already filed putting the rule’s legality before the New Mexico courts.  If forced to decide, we hope the courts continue to give life to the state constitution and our proud tradition of protecting public access to public waters. New Mexicans have always understood agua es vida, water is life. We know how vital managing this precious resource is to preserving our economy, our environment, and our traditional approaches, many of which have been in place since before statehood. Whether through the courts or not, we must all reaffirm that New Mexico’s rivers, streams, and lakes belong to the public.”