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New Mexico Supreme Court asked to weigh in on water fight

March 13, 2020 GMT

ALBUQUERQUE, N.M. (AP) — A coalition of outdoor groups on Friday asked the New Mexico Supreme Court to weigh in on a dispute over public access to rivers and streams that flow through private property.

The New Mexico Wildlife Federation and others filed their petition Friday, seeking to invalidate a rule adopted by the state Game Commission in 2018 that gives landowners the ability to petition state wildlife officials to certify waters on private property as “non-navigable” and prohibit public access without written permission.

Environmentalists, sportsmen groups and some lawyers have argued that the Game Commission has no authority to determine how waterways should be classified because water policy and law are beyond its scope.

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In the petition, the groups say the New Mexico Constitution specifies the unappropriated water of every stream in the state belongs to the public and whether a river or stream is navigable makes no difference.

Jesse Deubel, executive director of the New Mexico Wildlife Federation, described the issue as critical to anglers, boaters and other outdoor enthusiasts.

“While some landowners are quick to assert that this is an attack on private property rights, the reality is that they have deprived the public of its right to use public waters for decades,” he said.

Five applications making waters non-navigable were approved before the Game Commission in July placed a moratorium on the rule because of the legal questions being raised.

The commission voted in November to order the Game and Fish Department to come up with a plan to either change or repeal the contested rule, prompting a shakeup with the commission’s leadership. In early March, Game and Fish Director Michael Sloane filed a complaint in state district court, asking for clarification on whether and under what circumstances private landowners can prohibit people from fishing and otherwise using waterways that cross their property.

The petition filed Friday points to a 1945 case in which the state Supreme Court addressed the issue of public river access. The court concluded the public may fish, float or otherwise use streams and stream beds as long as they don’t trespass on private land to access the waters.

Several state attorneys general also have issued opinions on the matter. Most recently, Attorney General Hector Balderas’ office sent a letter to the commission last fall that concluded any language in the rule that attempted to prohibit access to the public waters was unconstitutional and unenforceable.

According to the petition, landowners who have had their applications approved have installed barriers along streams that cross their property, including a cable with a no trespassing sign attached and steel barriers with razor wire along the banks.