UNTIL 2015, NEW MEXICAN sportsmen and women could freely walk their favorite trout streams without fear of prosecution, as long as they remained in the stream. But then the legislature amended the Stream Access Law of 1978 to deny public access wherever a stream crosses private property. Sen. Richard Martinez of Espanola, the bill’s author, claimed that he received complaints from property owners about trespassing anglers leaving trash and camping illegally. These complaints prompted the bill that flew in the face of a 2014 attorney general’s opinion stating that streams were public domain. Ranchers and fishing lodge owners, angered by the attorney general’s opinion, took to the legislature, where Martinez pushed his bill through at breakneck speed. Section C of the ammended law reads:
No person engaged in hunting, fishing, trapping, camping, hiking, sightseeing, the operation of watercraft or any other recreational use shall walk or wade onto private property through non-navigable public water or access water via private property unless the private property owner or lessee or person in control of private lands has expressly consented in writing.
It is settled case law that the state controls the use of water and does not part with ownership; it only allows an immediate use of water (Jicarilla Apache Tribe v. United States, 1981). Waters don’t need to be appropriated for public use since they are already reserved for it, subject to being specifically appropriated for private beneficial use. So it appears that a sportsman may constitutionally fish from public waters so long as he or she does not trespass on private land, and the owner of the underlying land can’t complain about fishing from boats on the public waters above.
It also appears that the amended law may be in violation of the New Mexico State Constitution, which reads:
The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.
New Mexico sportsmen and women, as well as the rafting and boating community, have raised serious questions regarding the scope and purpose of the stream access law. However, these questions remain unanswered. The New Mexico Wildlife Federation, along with other concerned interests, will continue to challenge the law in every way possible. The matter is so murky now and landowners have taken drastic measures, such as placing rebar in sections of the Pecos River, to stop any would-be “trespasser.”
We hope that we can reach a settled statement on the breadth and depth of this law before some unwitting fisherman finds himself seriously injured or worse. We all can agree that private property rights are the cornerstone of this nation, but when they fly in the face of settled law, a state constitution and over 500 years of practice, something must be done.
If the access question can be clarified, New Mexico would join a handful of states where the public has broad access to stream beds, including Montana, Idaho, Oregon and Texas. But sportsmen involved in Montana’s access fight warn that New Mexicans may have a long row ahead of them. Montana’s stream access fight started in 1977 and continues to this day, said John Gibson, a Billings, Montana, sportsman and president of the Public Land and Water Access Association.
Even if New Mexicans have years of legal and legislative battles ahead to establish permanent access to our public streams, it’s worth the effort, said Gibson.
“Be prepared for a long, hard fight, but think of what you’ll accomplish,” he said. “Here in Montana, we feel very proud that we have been part of something that will benefit generations to come, and you can do that, too, by just asserting your rights. It isn’t everybody that gets that chance. We usually sit back and do nothing. But get in the arena. To hell with ’em. Be a Theodore Roosevelt of your time.”
New Mexico Wildlife Federation President John Crenshaw said the organization is aware of the difficulties that lie ahead, but that there is no choice at this point but follow the opinion of the state’s top legal authority, the attorney general’s office.
“The Federation has been fighting to protect our public property rights for a century, and we’re not going to quit now,” Crenshaw said. “Our streams, like our wildlife and public lands, are held in the public trust so that everyone can responsibly enjoy them in perpetuity. This is an opportunity for the sportsmen of our generation to make a difference, and in another 100 years the anglers of New Mexico will be thankful we did.”
About Todd Leahy
Todd is the deputy director for the New Mexico Wildlife Federation. He holds a J.D. in urban, land use and environmental law and Ph.D. in American Indian history.