April 23, 2020

Heinrich defends stream access as issue heads to NM Supreme Court

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Millstream (CC BY-NC-ND 2.0) by bloomgal

U.S. Sen. Martin Heinrich weighed in on an ongoing and complicated dispute between the state Game Commission and environmental groups about accessing streams in New Mexico. Heinrich told NM Political Report that New Mexico’s leadership needs to step up efforts to protect stream access rights. 

At issue is a rule adopted by the Game Commission in 2017 that enables landowners to apply through the New Mexico Department of Game and Fish to certify portions of waterways that run through private property as “non-navigable.” By obtaining the non-navigable designation, those landowners are able to block off portions of waterways from public access.

The rule was generally supported by landowners, and NMDGF approved several applications before it imposed a moratorium in July 2019 on issuing the certificates over legal questions. 

Critics of the rule argue that restricting public access to waterways — including those that flow through private property — is unconstitutional. The New Mexico Constitution states that waterways belong to the public, and critics argue trespassing was never allowed under state law to access a public waterway. Water recreationalists have also argued that the rule has impeded recreation on some of the state’s most popular waterways, including the Chama, Pecos, Alamosa, Mimbres and Peñasco rivers. 

Controversy around the issue swelled in early 2020, when Gov. Michelle Lujan Grisham declined to reappoint commission chair Joanna Prukop, whom she had appointed to the position in June 2019, after Prukop led a majority vote at the commission to ask the NMDGF to review and possibly amend the rule. Prukop alleged her removal was due to the non-navigable water rule. 

“That rule is unconstitutional in my view, and should have never been put in place,” Heinrich said. “The most straightforward way to fix this is for the Game Commission to pass a new rule that is consistent with the New Mexico constitution.”

In early March, Game and Fish Director Michael Sloane filed a complaint in state district court asking for clarification on whether private landowners can prohibit people from accessing waterways that cross their property. Two earlier challenges to the stream access provision of the state constitution, including the Red River Valley case of 1945, and an opinion released in 2014 by then-Attorney General Gary King, both determined landowners could not block access to waterways.  

Later in March, the New Mexico Wildlife Federation, Backcountry Hunters and Anglers and Adobe Whitewater Club filed a lawsuit asking the state Supreme Court to strike down the 2017 rule on the grounds that it violates the state constitution. Last week, the Supreme Court agreed to take on the case. 

“We’re at a critical juncture with all of this, with cases moving forward potentially in the district and Supreme Court. These next few months are going to be really critical,” Heinrich said. “I think these cases have the potential to really turn our history of water law, on its head.”

He added that he intends to file an Amicus Brief in the two cases, in support of public access to waterways in New Mexico. 

“I would call on the Game Commission, the Governor, the Attorney General and everyone else in positions of leadership in this state all step up and together defend New Mexico’s stream access rights,” Heinrich said. “My hope is that both of those courts look at that case law and have a favorable ruling, but I also think it’s important for all New Mexicans to actively defend those stream access rights. This is a moment to be counted on the right side of history.”