New Mexico Game Commission to fix “Non-navigable Water” Rule
This past Thursday November 21, the New Mexico Game and Fish Commission voted 6-1 to release an opinion from the New Mexico Attorney General's Office from September that - in line with the opinion of three prior Attorneys General - stated that the Commission's rule cannot block the public from recreating on rivers and streams that cross private property. In addition, the Attorney General released a press release "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."
The rule was enacted by the previous administration's Game Commission in 2017. It followed on the passage of 2015 legislation that allegedly allows landowners to post "non-navigable" streams and streambed against trespass. A definitive ruling by the New Mexico Supreme Court in 1945 in the State Game Commission v. Red River Valley that gave the public a superior right to use the waters flowing in natural streams whether flowing through public or privately held lands. Our members and affiliate clubs have tracked numerous instances where this has resulted barbed and razor wire being strung up across rivers and other dangerous obstacles installed within the river channel. The 2017 rule allows for these landowners to apply for a "non-navigable" certification with the Game Commission and enforce trespass within their streambeds. To date five certifications have been filed and two are pending.
In July, American Whitewater wrote a letter to the Commission imploring them to reverse the rule and protect New Mexican's access to their waterways. Since then we have collected over 500 letters from members and affiliate clubs to ask the same of the Commission. Those voices have been heard and the Commission, at the direction of the Attorney General, shall revise and/or repeal the rule.
Our work has only just begun. The November 21st Commission meeting had strong turn out from defenders of public river access, but also included a defense of the current rule from Lawyer Marco Gonzalez, speaking on behalf of a coalition of private landowners. Please stay tuned for updates on this issue and for future calls to action. The Commission and state government will need to hear from its constituents and visitors that they appreciate access to rivers and are willing to protect that right.
For more information see this post from the New Mexico Wildlife Federation. In addition to NMWF, we have been working closely with Adobe Whitewater Club, New Mexico chapter of the American Canoe Association, New Mexico River Outfitters Association, Backcountry Hunters and Anglers, Animas Riverkeeper, and River Reach Foundation.