State supreme court rules on recreational water use

The New Mexico Supreme Court last week issued an opinion that states:“People have a constitutional right to walk or wade on the streambed of water flowing over privately owned land when they fish or engage in other recreation.”

“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” the Court wrote, as stated in the court’spress release. “Having said that, we stress that the public may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”

This litigation brought together several groups from across the state. The New Mexico Wildlife Federation was one of three petitioners which filed the lawsuit against the respondent, the New Mexico State Game Commission.

Intervenors included the New Mexico Cattle Growers Association, the Upper Pecos Watershed Association, Chama Troutstalkers, L.L.C., and several others.

The other two petitioners were Adobe Whitewater Club of New Mexico and New Mexico Chapter of Backcountry Hunters & Anglers.

“The Court emphasized that ‘the scope of the public’s easement includes only such use as is reasonably necessary to the utilization of the water itself and any use of the beds and banks must be of minimal impact,” the release states.

The News interviewed Jesse Deubel, executive director of the New Mexico Wildlife Federation, on Tuesday about the court’s decision.

The court’s decision was “as expected on this,” Deubel said, because in 1945 the New Mexico Supreme Court decided a similar case.

“In 1945, the Supreme Court concluded that the constitution – Article XVI, Section 2 – and pre-statehood law established a right for the public to fish, boat and engage in other forms of recreation in public water,” as stated in the release. “The 1945 case determined that a landowner with property on both sides of a lake could not prohibit someone from fishing in boats on the lake.”

Deubel said that “somehow over the years” since this decision, a rule was passed by the New Mexico State Game Commission that allowed landowners to apply for a non-navigable water certificate, which gave them the right to close off public access to waters on their land.

He said the petitioners filed this lawsuit-- a writ of mandamus-- to get an interpretation of the state constitution on this question. The court’s decision effectively repealed this Game Commission rule.

Loren Patterson, president of the New Mexico Cattle Growers Association, an intervenor in the case, spoke to The News about the decision on Monday.

Patterson said they are “disappointed” in the decision because it “puts us back into limbo” on the question of “where do private property rights begin and where do recreational rights begin.”

He said the decision “basically asks landowners to let people on property they are paying taxes on.”

“No one is denying people have the right to recreate on water,” he said. “But now there is no clear-cut mark on what is considered trespassing and what is not considered trespassing.”

He said what does the court mean by “reasonable access” in the opinion?

The court has now created “this fuzzy boundary,” which “will be enforced by every sheriff in every county differently,” he said.

Deubel said, in response to Patterson’s point, that law enforcement in general involves the discretion of the person enforcing the law.