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Last Thursday the NM State Game Commission held their much-anticipated meeting to determine the status of five Non-navigable Water applications, among other less interesting but equally important topics. I had originally predicted the meeting would be nothing more than another episode of “kick the can”. Boy was I wrong!
NON-NAVIGABLE WATER APPLICATIONS
For anyone who has been living under a rock these past few years; the Game Commission was recently mandated, by court order, to act on the applications of five NM landowners to certify the waterways on their private property as non-navigable under the Landowner Certification of Non-navigable Water Rule (19.31.22 NMAC). Simply put, applicants approved under the Rule are provided with signage to be placed along a privately owned streambed (outlined in the application) distinguishing that waterway as “non-navigable” which in turn provides the landowner with the means necessary to pursue criminal trespass against anyone found walking or wading in that streambed. The applications have been pending since the Commission placed a moratorium on the Rule back in 2019. A Federal Court ruled in March that the moratorium was unlawful and ordered the Commission to act on the applications by September 5th. Much to my surprise, the Commission voted to deny all 5 applications. Even though the Commission had previously approved other applicants with similar waterways, in similar areas, under the exact same set of circumstances (which is basically the definition of arbitrary and capricious).
Commissioner Vesbach lead all 5 motions to deny using his personal views on the constitutionality of the Stream Access Law as justification for the denial. Commissioner Salazar-Henry seconded all motions. Neither of these votes were particularly surprising as Vesbach and Salazar-Henry have stood by their opinions on the issue since day one. What was surprising was that Commissioners Lopez and Bates also voted to deny the applications. These votes came as a complete shock as Commissioner Bates has previously proclaimed himself to be pro-private property rights and Commissioner Lopez was appointed by the Governor under the “Agricultural Position”. The Chairwoman, unsurprisingly, abstained from the formal vote. However, she prefaced her abstention by making the confusing statement that “all abstaining votes will count towards the majority”. So, in the end, the Commission denial of the applications was disappointingly unanimous.
The Stream Access Law is currently waiting on the NM Supreme Court to determine its constitutionality. However, in the meantime, the Law is still very much in effect. The problem with the Commission voting to deny the applicants based on the Law rather than the Rule is twofold. First, the parameters set forth in the Rule are separate of the constitutionality question surrounding the Stream Access Law. The Commission was under a court order to follow the Rule and instead they denied the applications based solely on individual personal beliefs which are not substantiated by current law. Second, the Commission vote created a misperception in the minds of the public many of whom wrongly believe that because of this vote waterways on private land are now fully accessible to public recreation. This dangerous misperception has been perpetuated by media statements in the paper, from Senator Heinrich’s office, and by sportsman groups such as the NM Wildlife Federation and Backcountry Hunters and Anglers.
To be absolutely, indisputably clear (because clarity has been frustratingly absent throughout this entire process) it is still ILLEGAL to walk or wade in a streambed with private property on both sides of the bank REGARDLESS of whether a landowner has a Non-navigable Water Certificate. The vote that was taken by the Commission this past Thursday did nothing to change this fact. The statute (commonly referred to as the Stream Access Law) which was signed in 2015 and codified 30+ years of NMDGF rule, clearly reads “no person engaged in hunting, fishing, trapping, camping, hiking, sightseeing, the operation of watercraft or any other recreational use shall walk or wade onto private property through non-navigable public water or access public water via private property unless the private property owner or lessee or person in control of private lands has expressly consented in writing” (Chapter 34 Section 17-4-6 NMSA 1978).
The unfortunate side effect of Thursday’s Commission vote will be an unavoidable increase in trespass on private property. Sadly, many of these trespassers will be completely unaware of the illegality of their actions due to reckless and irresponsible media. NMCOG encourages landowners who find trespassers in and along their private waterways to immediately contact Operation Game Thief (1-800-432-4263) or call your local NMDGF Conservation Officer.
APPROVAL OF THE MIGRATORY GAME BIRD RULE
The Dept. provided their final presentation on the proposed changes to the annual update to the Migratory Game Bird Rule. The Department changes were based on public comment, the latest information from the United States Fish and Wildlife Service (USFWS), recent survey information, and NMDGF management goals. Season selections and bag limits are determined in conjunction with the USFWS working through the Central and Pacific Flyway Councils. The Commission approved the Rule, and the changes are as follows:
SUBSEQUENT DISCUSSION OF THE UPLAND GAME RULE
The upland game rule is amended every four years. The current 4-year rule expires April 1, 2022. Proposed changes to the rule as submitted by the NMDGF are as follows:
The Dept. is currently taking public comment on their proposed changes. Please submit comment to DGF-Gamebird@state.nm.us. This rule will be approved by the Commission in October.
SUBSEQUENT DISCUSSION OF THE FISHERIES RULE
The fisheries rule is amended every four years. The current 4-year rule expires April 1, 2022. Proposed changes to the rule as submitted by the NMDGF are as follows:
The Dept. is currently taking public comment on their proposed changes. Please submit comment to DGF-FisheriesRule@state.nm.us. This rule will be approved by the Commission in October.
INITIATION OF THE FURBEARERS RULE
The Department took the required steps necessary to open the Furbearers Rule. Senate Bill 32 which was signed into law by the Governor after the 2021 Legislative Session will make it illegal as of April 1st, 2022, to recreationally trap on all NM public lands. The law contains several exemptions including an exemption for all members of a nationally recognized Native American Tribe. The NMDGF will be required to update their rule book to follow provisions of SB 32. The Department will post proposed changes to the Furbearer rule on the Department’s website. And the commission will approve the changes at a subsequent Commission meeting.
LAGUNA DEL CAMPO TRANSFER
In August of 2017, the Commission approved the Department to work with the Tierra Amarilla Land Grant on the transfer of the Laguna del Campo property. During the 2019 legislative session, Senate Joint Resolution 2 authorized the Commission to transfer the Laguna del Campo property to Tierra Amarilla Land Grant but did not mention transfer of the water rights associated with the lake. Since the Commission’s April meeting an agreement has been reached by the Land Grant and the NMDGF. The Commission approved to transfer 20.405 acres of land associated with Laguna del Campo to the TA Land Grant via quitclaim deed as well as to transfer the storage water right in the amount of 96.7 acre-feet while the NMDGF will retain the surface water diversion right.
ODDS AND ENDS
The Commission heard additional presentations from the Outdoor Recreation Division of the Economic Development Department and the Youth Conservation Corp. They approved the 2023 Dept. budget request. The Director provided an update on Dept. initiatives and thanked the Governor for proclaiming Sept. 25th as Hunting & Fishing Day. And the Commission recognized Colleen Payne of the Mule Deer foundation for facilitating the annual Governor’s Hunt Auction which generated a record number of funds ($194,000) for the NMDGF to benefit conservation!
Next Commission Meeting – October 15, 2021 (Location TBD)
COMMISSIONER CONTACT INFORMATION
(You're encouraged to contact the Commissioners any time to voice your opinion)
Sharon Salazar Hickey - Chairwoman
District 4: Santa Fe, Taos, Colfax, Union, Mora, Harding, Quay, San Miguel, Guadalupe
and Torrance counties
Jeremy Vesbach - Vice Chairman
District 3: San Juan, McKinley, Cibola, Valencia, Sandoval, Los Alamos and Rio Arriba counties
District 2: Catron, Socorro, Grant, Hidalgo, Luna, Sierra and Doña Ana counties
District 1: Curry, De Baca, Roosevelt, Chaves, Lincoln, Otero, Eddy and Lea counties
District 5: Bernalillo county
Appointed - Agriculture Position
Appointed - Conservation Position