On March 20 the New Mexico Legislature passed a bill by a 32-to-31 margin that aims to restrict the public’s access to waterways that run through private property. As it stands, the public can canoe, fish, and wade in “non-navigable public water” that passes through private property as long as they don’t leave the streambeds and trespass on the surrounding lands. But the bill, SB 226, if signed into law by Governor Susana Martinez, would forbid anglers and the general public from using these streams unless granted written permission from landowners whose property through which the waters pass. It’s speculated that the bill would affect 30 percent of public streams in the state.
As The Albuquerque Journal reports, the bill seeks to overturn an opinion issued in 2014 by the state’s former attorney general, Gary King. King’s remarks were in favor of public stream access and spoke out against ranchers and (more surprisingly) fishing lodges seeking to claim streambeds as part of their property.
The article notes:
King’s opinion relied on water law established when New Mexico was still a territory and reiterated in the state constitution, that water in natural streams belongs to the public.
It also cited a 1945 state Supreme Court opinion establishing the right to fish from a boat on the Conchas Dam reservoir, which was bordered by private land.
But King’s opinion reversed decades of tradition and practice, and it’s at odds with state Department of Game and Fish (NMDGF) regulations that require written permission to be on stream and river bottoms located on private property.
King’s opinion sparked landowners to push for the bill, the votes for which were cast along party lines, with Democrats opposed and Republicans in favor. Only one Republican voted against the bill, claiming that its stipulations would be impossible to enforce and are altogether unreasonable.
A conservation group called The New Mexico Wildlife Federation asserts that one of the greatest problems with the bill is that it would give the NMDFG authority to decide which streams are navigable and thus open for public recreation and which are not.
Like King, the group cites previous legislation:
The question of legal access has already been decided. The state Supreme Court in 1945 found the public has recreational access to all streams in New Mexico, regardless who owns the adjoining land and the streambed.
In response to the criticism for the bill, the Chas S. Middleton & Sons real-estate company wrote a reply on its website “dispelling the opposition’s misgivings.” The company notes that the NMDGF already requires individuals to obtain written permission from landowners before fishing on private land and the bill would only further cement the practice, thus nothing would really change.
More notably, the statement addresses the Supreme Court’s previous ruling about public waters:
[The 1945 case] referred to a situation where a mostly privately owned lake could be accessed, by boat, from a waterway located on public land. The case dealt exclusively with an individual’s right to access water without touching the streambed. The case never mentioned walking, wading, or standing and only mentioned the touching of a streambed as it referred to “incidental contact.”
It’s believed that Governor Martinez will likely sign the bill. If she does, anglers in the state can only hope that the law will make it to the Supreme Court, who will hopefully clarify and uphold their 1945 ruling, for the good of fishermen in New Mexico, in the West, and across the country. —The Editors
***Update (11 am): This is certainly a complicated issue, and the editors welcome your input on the matter, especially if you live in New Mexico. Please send responses to editorial[at]sportingclassics.com. We’ll add insightful replies to this story as they come in.
Cover image: Joel Deluxe/Flickr