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CURRENTS 71: Help prevent conflict about river rights in New Mexico and other states
The New Mexico Legislature is about to vote on a bill that would create long-term conflict about river rights in New Mexico, and would also negatively influence river rights in other states.
River users in New Mexico can call and email their state senators, and Governor Susana Martinez, as soon as possible, to oppose the bill.
River users in other states can also call and email New Mexico senators, and Governor Martinez, emphasizing that the bill would reduce New Mexico revenues from visitors from other states.
For centuries, the laws and customs of New Mexico have recognized a public easement to canoe and fish on the rivers and large creeks of the state, including wading and walking on the beds and banks of these waterways. This public easement applies on segments flowing through private land as well as public land, as the New Mexico Attorney General’s Office made clear in its decision of April 2014 (see background discussion below.)
These New Mexico laws and customs line up with U.S. Supreme Court decisions confirming this public easement on rivers nationwide, on segments flowing through private land as well as public land.
However, the new bill, Senate Bill 226 (and the nearly-identical House Bill 235) would make it a crime to “walk or wade onto private property through non-navigable public water,” without defining what qualifies as navigable or non-navigable public water for these purposes, and whether “onto private property” means walking on a riverbed, or means walking away from a river onto the surrounding upland.
The Legislative Finance Committee (which analyzes bills for fiscal impact and legal validity,) concluded that “the bill’s language is vague and will likely lead to litigation over which waters are non-navigable,” and over the meaning of walking or wading “onto private property” while canoeing or fishing on a river. The report notes, “Navigability is a legal issue… federal courts have held that bodies of water much smaller than lakes and rivers, including shallow streams only traversable by canoe, can be navigable.”
The report is correct: The bill would cause long-term conflict about which rivers in New Mexico are navigable, and what rights the public has to boat and fish on them, to scout and portage rapids or obstructions, to walk on gravel bars at lower water levels, and to walk along riverbanks at higher water levels.
Consequently, NOR directors sent the following letter to New Mexico senators, and a similar letter to Governor Martinez:
We ask you to vote NO on SB 226, “Use of Public Water.”
At present, landowners, fishermen, canoeists, kayakers, rafters, and state government agencies in New Mexico have clear guidelines about the public easement to use rivers for canoeing, kayaking, rafting, and fishing. These guidelines are consistent with U.S. Supreme Court decisions and Acts of Congress dating back to the origins of the nation.
SB 226 (and HB 235) would create unresolvable chaos, by barring the public from “non-navigable public water.” Since rivers typically get smaller and less navigable gradually, not suddenly, no one would be able to say for sure which river segments are supposed to be open to the public and which are not, under state or federal law.
This would result in an enormous waste of time for landowners, canoeists, kayakers, fishermen, law enforcement, and government agencies. It would be a disservice to landowners as well as river users and law enforcement personnel. It could subject landowners to criminal and civil liability if they put a fence across a river that is supposed to remain open under state or federal law. It would alienate river users visiting from neighboring states, since they would be afraid of being cited for trespassing, or of drowning from entanglement in a fence across a swift-flowing river. It would result in lost revenue for New Mexico.
Please don’t create this unresolvable ambiguity, conflict, and loss for all parties. Please vote NO on SB 226 (HB235). Thank you.
To call New Mexico senators: Dial 1-505-986 plus the last four digits shown on the legislature’s list of office assignments and telephone numbers, available at: http://www.nmlegis.gov/lcs/lcsdocs/office_assignments.pdf
The email addresses of key senators include:
Senator Peter Wirth, email@example.com
Benny Shendo, firstname.lastname@example.org
Joseph Cervantes, email@example.com
Richard Martinez, firstname.lastname@example.org
Phil Griego, email@example.com
William Payne, William.firstname.lastname@example.org
William Sharer, email@example.com
William Soules, firstname.lastname@example.org
John Ryan, email@example.com
Pat Woods, firstname.lastname@example.org
To call and email New Mexico Governor Susana Martinez, go to:
The New Mexico Attorney General issued an official opinion (in response to questions from legislators) in April of 2014, confirming public rights to boat and fish on river segments flowing through private lands, based on earlier state Supreme Court decisions. Such opinions guide state government agencies and law enforcement personnel, until and unless state courts decide otherwise.
The opinion frames the legal issue as follows:
QUESTION: May a private landowner exclude others from fishing in a public stream that flows across the landowner's property?
CONCLUSION: No. A private landowner cannot prevent persons from fishing in a public stream that flows across the landowner's property, provided the public stream is accessible without trespass across privately owned adjacent lands.
The opinion cites a decision by the New Mexico Supreme Court in 1945, and other supporting law, and concludes that even where a private landowner “owns the beds of the streams” flowing through private land, he “obtained no interest of any kind (riparian or otherwise) in the water flowing over those beds,” and therefore that whether the bed of a stream is privately owned is “not material to answering the question presented,” because regardless of who owns the beds of streams, the water in them is “public and subject to use by the public for fishing and recreation.”
“Even if a landowner claims an ownership interest in a stream bed,” the opinion says, “that ownership is subject to a pre-existing servitude (a superior right) held by the public to beneficially use the water flowing in the stream.” It confirms that the public has an “easement,” which it defines as a legal right to the “use of water in a stream that runs across private land and any incidental use of private property, such as the stream bed, that is necessary to use the water.”
Regarding the depth of the water in a shallow stream, the opinion says that the public right does not depend on “whether the waters are deep enough to float a boat.” It confirms that “the public’s right to use public waters for fishing includes touching the bed of a stream in ways that are reasonably incidental to that right, including wading, walking and standing in the stream.”
The opinion concludes, “The public’s right to enjoy the use of public waters is no different when those waters are located on or run through private property,” and adds, “The public's right to use public waters for fishing includes activities that are incidental and necessary for the effective use of the waters. This includes walking, wading and standing in a stream in order to fish.”
Finally, it reconfirms that on river segments flowing through private land, a fisherman who is “walking, wading or standing in a stream bed, is not trespassing.”
The opinion can be viewed in full by going to http://public-records.nmag.gov/opinions and scrolling down to April 1, 2014 (Can a private landowner exclude others from fishing in a public stream that flows across the landowner's property?)
The opinion is consistent with U.S. Supreme Court decisions and Acts of Congress over the course of two centuries. It reflects the most recent U.S. Supreme Court decision regarding public rights on rivers, Montana v. United States, 450 U.S. 544 (1981), which confirmed the public easement on a shallow river in Montana, “regardless of who owns the riverbed” in various sections, and confirmed that this easement includes public rights to engage in “sports fishing and duck hunting.”
Senate Bill 226 would conflict with this, which would seem to make it invalid, but even so, the conflict would not be readily resolvable. Litigation would cost many thousands of dollars, probably with state government lawyers (funded at taxpayer expense) claiming that the state has authority to enforce such restrictions, while the other side, working to defend public rights, would have to rely on private funding.
River users can prevent this lopsided and unjust outcome by contacting state senators and the governor TODAY to oppose Senate Bill 226.
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