Spring 2020 issue Backcountry Journal

CHAPTER NEWS
In Depth:
New Mexico Chapter
Battles for Public
Stream Access
Photo by Garrett VeneKlasen
BY ROB PARKINS
BHA members, other sportsmen’s groups including New
Mexico Wildlife Federation and American Whitewater,
lawmakers and outdoor industry businesses recently used their
collective voice in an effort to reverse the stream access regulations
in New Mexico that appear to violate the public’s constitutional
right to access any stream or river within the state as long they
do not trespass to reach or leave the water. Due to the pressure of
in-person testimony, a letter writing campaign to Gov. Michelle
Lujan Grisham and the New Mexico Game Commission, a BHA
petition signed by over 1,100 members and a favorable statement
from the New Mexico attorney general’s office, there is hope that
privatized waters in New Mexico waters will be opened to all.
The New Mexico Constitution, enacted in 1907, states that
“every natural stream, perennial or torrential, within the state of
New Mexico, is hereby declared to belong to the public and are
subject to appropriation for beneficial use.” But in 2015, with
support from landowners and special interests, the state legislature
passed a law, by one vote, that gave the New Mexico State Game
Commission the authority to declare waters running through
private property as “non-navigable.” That set the stage for the
commission in 2017 to adopt a new rule (19.31.22 NMAC) that
allows landowners to apply to have stretches of stream designated
non-navigable and therefore closed to the public. The first
applications included stretches of the Chama, Pecos, Alamosa,
Mimbres and Penasco rivers. All five were approved in the fall
of 2018 by the previous game commission. In the summer of
2019, Gov. Lujan Grisham’s newly appointed game commission
placed a moratorium on the access rule until an opinion on its
constitutionality could be issued by the attorney general.
Outdoor recreation in New Mexico supports nearly 100,000
jobs and brings $9.9 billion in consumer spending. Industry
partners who have a stake in defending public access, such as
Patagonia, the American Fly Fishing Trade Association, Fishpond,
Far Bank Enterprises (Sage, Redington, RIO Products and Fly
Water Travel), RepYourWater, Ross and Abel Fly Reels, wrote to
Governor Lujan Grisham urging her to “support the commission’s
decision and reaffirm the state’s commitment to upholding access
opportunities critical to New Mexico’s economy and outdoor
traditions.” Access to the state’s rivers and streams are not only
integral to the state’s economy; they also are critical for the
enjoyment of New Mexico’s citizens and a lifeblood for outdoor
traditions.
While many people were gearing up for hunting season, in
September Assistant Attorney General John Grubesic released a
letter stating, “The constitution does not allow an interpretation of
19.31.22 NMAC that would exclude the public from using public
water on or running through private property for recreational
uses if the public water is accessible without trespassing on private
property.” He added, “Any language in 19.31.22 NMAC which
attempts to prohibit access to the public waters of New Mexico is
unconstitutional and unenforceable.”
His statement, based on both the state constitution and a 1945
New Mexico Supreme Court decision that affirmed public stream
access, will hopefully inspire the commission to rescind their rule
or revise it to comply with the constitution.
U.S. Sens. Martin Heinrich and Tom Udall, along with U.S.
Rep. Deb Haaland, wrote to Game Commission Chairwoman
Joanna Prukop in support of ensuring access, stating, “Like others
who value our federal lands and waters as assets to be enjoyed and
passed to future generations, we respectfully urge you to reaffirm
the state’s commitment to uphold our access opportunities and
stand against the privatization of New Mexico’s streams and
rivers.” With an outpouring of support from the public, the
game commission agreed in November to reconsider the rule.
This spring, they could order the New Mexico Game and Fish
Department to either amend or repeal the regulation.
Leading in to 2020, Gov. Lujan Grisham, who says she
supports stream access, dismissed Chairwoman Prukop, creating
some doubt on the future of stream access in the state. Joel Gay,
chair of the New Mexico chapter, expressed that “New Mexico
anglers, boaters and others had been optimistic that our new State
Game Commission might do a politically courageous thing in
2020 and actually improve public access to our rivers and streams.
Given the political pressure the governor has faced regarding this
sensitive issue, we were not surprised by her action. We remain
optimistic, however, that Gov. Lujan Grisham will do the right
thing and allow the commission to follow our state constitution
and Supreme Court rather than bend to political pressure.”
Our hope is that the next chair continues to lead the commission
and their mandate to protect and enhance the public waters for
the benefit and enjoyment of New Mexico’s citizens.
Rob Parkins, living in Victor, Idaho, is the public access coordinator
for BHA. When not making a living working on access issues, he
makes his life fly fishing and bow hunting across the West and raising
Labradors.
48 | BACKCOUNTRY JOURNAL SPRING 2020