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CURRENTS 71: Help prevent conflict about river rights in New Mexico and other states

March 18, 2015
CURRENTS 71: Help prevent conflict about river rights in New Mexico and other states For centuries, the law has confirmed public rights to use rivers in New Mexico and elsewhere to transport railroad ties (shown here,) furs in canoes, rafts, kayaks, and other craft, and to scout rapids, portage, and walk along the beds and banks of rivers, regardless of public or private ownership of the land under and around the river. Act now to prevent new conflicts about river rights in New Mexico and other states.

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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:

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Dear Senator:

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.

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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, peter.wirth@nmlegis.gov

Benny Shendo, benny.shendo@nmlegis.gov

Joseph Cervantes, joseph@cervanteslawnm.com

Richard Martinez, richard.martinez@nmlegis.gov

Phil Griego, senatorgriego@yahoo.com

William Payne, William.payne@nmlegis.gov

William Sharer, bill@williamsharer.com

William Soules, bill.soules@nmlegis.gov

John Ryan, john.ryan@nmlegis.gov

Pat Woods, pat.woods@nmlegis.gov

To call and email New Mexico Governor Susana Martinez, go to:

http://www.governor.state.nm.us/Contact_the_Governor.aspx

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Background:

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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Your contributions to the National Organization for Rivers, and your purchases of books and materials, help to continue this process of negotiating to improve public rights on rivers nationwide. Thank you for your purchases and contributions.

Comments (1)

  1. Larry Johnson:
    Mar 29, 2015 at 02:00 AM

    New Mexico Stream Access has now been clarified for all via SB 226

    Unfortunately, the National Organization for Rivers have it all wrong, no one in New Mexico will be denied access to fishing. The state will operate as it has for the last 85 plus years when fishing became a well utilized leisure time activity. I am a river land owner and one of the three principle citizens that worked for the clarification of property rights in New Mexico. Senate Bill SB 226 will save the taxpayers in New Mexico millions of dollars in law suits and will protect thousands of miles of river fishing in the state.

    All states have a definition of stream or river access, some are very clear and well defined, others are more vague. Many states have similar definitions but most vary slightly from each other’s full or restricted river access policies. Two good examples would be Montana and Colorado. It all comes down to the definitive definition of ‘Private Property’ verses ‘Public Easements’ which are very clear from all legal stand points. All running water is public, i.e., owned by the citizens, managed and controlled by Federal, State and sometimes local governments. Some people do have water rights but no one owns the water.

    In Montana, when you buy property with a river running thru it, it is clear on the property’s title, i.e., deed that all land under the river is NOT private property but an ‘easement’ of that deed. This means the public may access the stream bed via walking, floating or by anchored boat which is floating. You may not access the river by trespass via private property without the landowner’s permission. To wade the river legally, you need to gain access to the river via a public entrance such as a bridge or a public road that has public proximity to the high water line which would let you enter the river without touching ‘Private Property’. Once in the river you may move up or down river at will, up to the historical ‘High Water’ mark.

    In Colorado you have a different set of rules. Again, going back to the ‘title and deeds’ of said properties that have streams and rivers running thru them. In Colorado, the water again is public but in this state, if the deeds of the property give a list of the acreage that is under the river as ‘private property’, then access it treated just as any other piece of land that is private property. So in this case, the land owner does not own the water but they do own the land under that water, which is their private property. This means the public may float over the private property and fish that water but they cannot touch the streambeds by any means, which would include wading, standing or dropping of an anchor. There is a caveat, you may touch the ‘private property’ incidentally to ensure safe passage, i.e., push off rocks. You may also use a paddle or oar to assist moving beached watercraft that may be temporarily stuck on a sand bar of rock. If the angler or public wants to wade the river or drop anchor to hold still and fish a specific spot, they will need the landowners permission first and without that permission they may be sited for ‘Trespass’.

    Now for New Mexico…. It is being stated the bill in New Mexico, SB 226, restricts access to rivers and streams that cross over private property. This is totally false because New Mexico has operated on the same assumptions as Colorado for years; anglers do need the landowner’s permission to wade or drop anchor on rivers with deeds of that have said private property. This has been written in every New Mexico Department of Game and Fish Proclamation for as long as the department has been established. Land under the river is private property where deeds and title verify that fact.

    So why now the need and justifiable passing of SB 226? It was a fact that the outgoing State Attorney General, Mr. Gary King, was running for Governor last year. In an unethical and un-researched act, he issued an attorney general opinion, not law, just an opinion, that the public could enter private property without permission as long as there was water over that private property. This opinion caused massive confusion for the public and the fishing community in general. The New Mexico Department of Game & Fish and its Commission knowing they barely had the resources and budgets to manage the public lands under their charter at this time were extremely concerned. They knew if this opinion was not challenged, it would open up thousands of miles of water of and create an unfetter assault by the public. If SB 226 was not passed these waters would have been devastated by over fishing and unchecked harvesting of fish with no civic controls, the NM Game & Fish commissioners knew they just did not have the resources to deal with the problem. In reality it was a Godsend that the bill did get passed and this will ensure that New Mexico rivers will fish well for generations to come. SB 226 struck down the incorrect AG Opinion and makes it clear for all citizens and the public to know what the law is. In reality nothing has changed and nothing has been taken from the public for there was nothing to take away in the first place.

    In closing I know that ‘Stream Access’ is an emotional topic for the entire angling community. I myself like to see as much access for the public as possible. I let considerate members of the public fish and wade my private section of the river all the time and at no time do we ever impede those anglers or boaters floating over my private property. Should New Mexico change its charter on stream access from the Colorado model to something like the Montana model? Well, maybe someday but if this to happen it needs to be done the correct way, through legislation not through law suites. There are other options too, like the River Reach programs or Western Rivers Conservancy, where a mixture of private and public organizations buy or get property donated by the river land owners for the public to use. Maybe the State or Feds should offer the landowners incentives to open access. This would be the correct way to make change, for this is America, we don’t operate on a ‘bait and switch’ on its citizens. Landowners who invested in States like Colorado or New Mexico have a valid deed on property that they worked hard to acquire, they cannot be removed with an opinion. Right now the State of New Mexico, top consideration will be honoring those deeds as is legally correct to do. This now can be done and done with no misunderstanding with the signing of SB 226 to make the law clear.

    With this explanation I ask Governor Martinez to sign SB 226 without hesitation.

    Kind regards,
    Lawrence W. Johnson Jr.
    Owner: Soaring Eagle Lodge
    info@soaringeaglelodge.net

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