A stream access dispute that has been brewing for years between public access advocates and landowners could be resolved once and for all, now that litigation has brought the matter to the New Mexico Supreme Court. In March, three conservation and public access organizations, the New Mexico Wildlife Federation, Backcountry Hunters and Anglers (BHA), and Adobe Whitewater Club, filed a lawsuit against the governor and the state Game Commission. While it’s hard to boil the issue down into a few lines, balancing the rights of landowners with those of the public is an integral component of the lawsuit, which asks the Supreme Court to strike down a 2017 state Department of Game and Fish rule that enabled landowners to restrict access to streambeds and banks that line waterways located on private property.
That rule was the result of a 2015 bill that became law, codifying thirty years of Game and Fish regulations that considered members of the public from walking onto private property from public waterways as trespassing.
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The state Supreme Court took up the case at the end of March, and by mid-April, a contingent of landowners and other groups, including the New Mexico Council of Outfitters and Guides (NMCOG), requested to intervene in the case in support of the 2017 Game and Fish rule, arguing that they would be negatively impacted by a potential Supreme Court ruling striking it down.
Groups on both sides of the dispute all have different ideas about what’s at issue, and what’s at stake, but all parties are quick to point out the dispute is incredibly complicated. And while there’s no shortage of opinions on the topic, stakeholders on both sides of the fence seem to agree on one thing: it was a 2014 opinion issued by then-Attorney General Gary King that started the whole thing.
Private property and public waters
The New Mexico constitution states that “unappropriated water of every natural stream, perennial or torrential,” within the state of New Mexico, is “declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.”
Everyone agrees that the waters of New Mexico are public, Kerrie Romero, executive director of NMCOG, told NM Political Report. What’s in dispute is how the public can access those waters.