Dispelling the opposition’s misgivings to HB 235 and SB 226 (Use of Public Water and Landowner Protection)
On the heels of a recent article published Monday by the Taos News we feel it necessary to try and set the record straight regarding the stream access legislation currently moving through the 2015 NM Legislature.
House Bill 235 (currently located on the House Floor) and Senate Bill 226 (located in the Senate Judiciary Committee) are titled Use of Public Water and Land Owner Protection. These two bills are identical in language and purpose.
The bills were introduced in response to former Attorney General Gary King’s written opinion released in April of 2014 which stated that in his opinion an individual would be within their right to access public waters on private lands, for the purpose of recreation, by walking up any waterway. This opinion was in total contradiction to the current practice of the fishing industry. The issue has been further confused by the New Mexico Wildlife Federation’s, all but encouragement, for fisherman to look to the AG opinion to direct their actions rather than the current law. For the last approx. 35 years anglers have been required by New Mexico Dept. of Game & Fish law to obtain written permission from the private landowner in order to recreate on the waters located within the private lands.
Below are the New Mexico Council of Outfitters and Guide’s responses to a list the common misunderstandings regarding the bill as well as the current regulations of the fishing industry.
RUMOR: The AG opinion does not hold the weight of law and therefore this legislation is unnecessary
FACT: Most people do not understand that an AG opinion does not hold the weight of law. This confusion has been further perpetuated by the New Mexico Wildlife Federation in their print and verbal communications which have stated “for decades New Mexico anglers have been told they could not fish or wade in any waters…but that long-held idea, that streams that run through private land can be fenced off, turns out to be wrong.” Statements such as this are basically encouraging anglers to trespass. Landowner/angler conflicts are likely to occur because of the confusion surrounding the AG opinion vs. existing NMDGF regulation. This legislation seeks to prevent potential conflicts by codifying the existing practice of the fishing industry into statute.
RUMOR: This bill will effect a large percentage of waterways in NM
FACT: Approximately 70% of the waters of NM are already located on public land. This legislation only refers to the 30% of waterways that are located on, or flow through, private lands. It is important to also remember that this legislation only deals with the recreational access of waters. The passing of this legislation would not circumvent any right to manage waterways on private lands as has been determined by the Corp of Engineers or Office of the State Engineer.
RUMOR: This bill will prevent anglers from accessing their favorite fishing hole on private land.
FACT: It is currently the requirement of the New Mexico Dept. of Game & Fish that you obtain written permission of the landowner in order to fish on private land. This legislation would only codify this existing practice. Individuals who are currently fishing on private land without landowner permission are already breaking the law. We should not be giving preferential consideration to the concerns of individuals who are currently breaking the law. It’s safe to assume that if they are already law breakers, they will continue to do so regardless of any laws passed by NM legislators.
RUMOR: This bill would prevent float access and portage.
FACT: There is a specific provision in the bill regarding the right to floating access (page 4, line 20). Nothing in the bill would prevent floating access and any “incidental contact”. Examples of this would include falling out of the boat, or the need for portage due to a shallow area of river. The bill also does not circumvent any existing easements provided by landowners to provide float access through areas of private land.
RUMOR: This bill will prevent anglers from accessing fishing on private land where they have fished legally for years
FACT: The bill does not circumvent any existing easements provided by landowners to allow fishing on private land. For example, there are stretches along the Pecos, Chama, and Rio Brazos where landowners have filed easements to allow anglers to access the river located within private land. These easement would not be dissolved with the passing of this legislation.
RUMOR: The NM Supreme Court case sited in the AG opinion clearly allows for walking, wading, or standing in stream beds (Game Commission vs Red River Valley)
FACT: The Red River case (1945) refereed 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 individuals right to access water without touching the stream bed. The case never mentioned walking, wading, or standing and only mentioned the touching of a stream bed as it referred to “incidental contact”. The case determined that because the waters of NM are owned by the public hence the public should be able to access the lake if it can be accessed without trespass. The Red River case did not define access as it relates to walking in stream beds.
RUMOR: Giving the State Game Commission the ability to determine navigability is dangerous and unnecessary
FACT: Former AG King’s opinion has created a situation where the ownership of stream beds is now in question. Up until this point the stream beds have been the property of the private landowner. Because that fact is now in question, we need a state agency to determine stream bed ownership in regards to recreational access to waters. It makes sense that the State Game Commission would be the agency to determine ownership due to the fact that they are already tasked, in statute, with regulating the taking of fish.
RUMOR: Determining navigability based on US Supreme Court law will close access all NM waters on private land
FACT: In 2012 the US Supreme Court ruled that navigability, and thus stream bed ownership, should be determined based on the water’s commerce ability at statehood. Therefore if a water is determined as navigable the stream bed ownership remains with the state. If the water is determined as non-navigable the stream bed ownership resides with the private landowner. A NM territorial Governor stated in 1902 that none of NM’s waters were navigable and therefore with the passing of this legislation private stream beds would be deemed the property of the private landowner. This is important because it is the reason why the State Game Commission needs to be tasked with the ability to determine the recreational use of a waterway (except those with an existing public access easement filed by the landowner). So that, for example, people can continue to float down the San Juan or Upper Rio Grande through private property where an easement does not already exist.
RUMOR: A determination of navigability can be overturned with each newly appointed State Game Commission
FACT: Under this legislation all waters would begin as non-navigable and would thus prevent individuals from walking up a dry ditch bed to access a dirt tank on private property. With the passing of this legislation the State Game Commission would immediately need to give access to those waters that are obviously navigable (San Juan, Upper Rio Grande, portions of the Pecos, etc…). Further applications for navigability may be brought forth by a landowner or individual with a desire to provide public access to waters on private lands. Determinations could not be overturned with a newly appointed Game Commission without going through a full legal appeal process as is the case with many laws foisted to be regulated by state agencies.
RUMOR: New Mexicans have a constitutional right to walk up a stream bed to access fishing
FACT: The NM constitution states that the waters of NM are owned by the public. The constitution does not say anything about the ownership of the stream beds. Currently stream beds are considered the property of the landowner per NM County records. All NM stream beds that run through private property are currently being assessed by each County as being owned by the private landowner and the landowner thus pays taxes on all of the land including the stream bed encompassing the water.
RUMOR: Montana allows wading access to waters on private land so New Mexico should too
FACT: There are many reasons why a regulation that is good for one state might not be good for another. It is true that Montana allows wading access to the “high water mark” (the point to which the river flows at seasonal flood stages). However, aside from the fact that Montana has far more water than NM, they also do not have a monsoon season creating season flow waterways. To implement the Montana stream access laws in NM would in essence be giving the public access to stream beds that might be completely dry for 90% of the year.
In Conclusion: In a perfect world the quality of the waters on the private and public land would be exactly the same. It is an unfortunate situation that in New Mexico the quality of the waters on the private lands are far superior to the waters located on the public lands. Private landowners in New Mexico have invested hundreds of thousands of dollars to improve and restore the stream beds and riparian areas along the waterways located on private lands. However, a lack of personal responsibility for the public waters has created a situation where, in many areas, public riparian areas are unfortunately abused to the detriment of the stream. This is the reason why the private land waters are so heavily desired to be recreated upon by the public as opposed to the public land waterways.
The responsible stewardship efforts implemented and paid for by our private landowners should not be undermined. This legislation would allow for the industry to continue to operate is it has for many decades and would also continue to maintain the incentive provided to landowners to continue the upstanding conservation practices currently benefiting all of New Mexico’s stream life.
Written by: Kerrie C. Romero – Executive Director of New Mexico Council of Outfitters and Guides www.nmoutfitters.com
Please tell your legislator to support HB 235 and SB 226