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The NM State Game Commission held their most recent meeting at the new Dept. of Game and Fish office in Roswell last Thursday. The meeting was heavily attended due to the discussion regarding stream access. Both sides of the argument were well represented. If you read nothing else in this re-cap, PLEASE read the portion on the Non-navigable waters rule. And if you think it doesn’t matter to you because you don’t fish or because you don’t own river front property; you are sorely mistaken. What ultimately happens with this rule, and the statute behind it, will have a long-standing impact on how private property rights are defined in state of New Mexico. Everyone will be impacted.
LANDOWNER CERTIFICATION OF NON-NAVIGABLE WATERS RULE
Several months ago, due to continued pressure from Back Country Hunters and Anglers and the New Mexico Wildlife Federation, the Game Commission decided to place a 90 day moratorium on the Landowner Certification of Non-navigable Waters Rule (commonly referred to as the Non-navigable Waters Rule) in order to allow the Attorney General’s office to provide an official opinion regarding the constitutionality of the rule. During Thursday’s Commission meeting it was revealed to the public that the Dept. had received a memo from the attorney general’s office (not the same as an “opinion” – which is an important distinction).
In the memo the AG’s office states that the Rule is “not in constitutional compliance and cannot be enforced”. To justify this stance the AG’s office uses Article XVI, section 2, of the NM Constitution which states “the unappropriated water of every natural stream, perennial or torrential, …is here by declared to belong to the public”. The memo goes on to state that the term “non-navigable” cannot be applied to “limit the public’s access” and that the “test of navigability used in other states to determine the public character of the water does not apply in New Mexico”. This is extremely important to understand because since the constitution includes “perennial or torrential” waters, without being able to use navigability to determine access the AG’s office is very possibly saying that the public has the right to walk up a ditch bank, dampened by a monsoonal flash flood, into any private property for any reason. I will note that the AG’s office has since somewhat back pedaled on their memo – and you can read the AG Press Release HERE
But that doesn’t seem to matter much because the Game Commission, based on the AG memo, made the decision to stop enforcing the Non-navigable Waters Rule and to consider rescinding the Rule altogether. Shout out to Commissioner Gail Cramer for being the lone voice of reason and for going out on a limb to express her pro-private property stance during the meeting.
This Commission decision was a gigantic blow to private property rights and to the NM guided fishing industry. First and foremost because the AG office has now labeled the Rule as unconstitutional and because of that, people will incorrectly believe that they have a legal right to fish in waters with private land on both sides. Even though there is still a law on the books that makes walking and wading in a privately-owned streambed illegal (without the landowner’s written permission). However, most folks (and the news media apparently) don’t seem understand the difference between Rule and Law. Many people will read the misinformation in the newspaper articles; with headlines such as “New Mexico moves to reopen public waterways on private property” (Santa Fe New Mexican) and they will believe they have the legal right to access private property. They don’t!! It is still considered trespass to walk or wade in a streambed that has private property on both sides of the bank. And while the Commission Chairwoman has stated that the NMDGF will continue to enforce criminal trespass as they have for the past 30 years many people don’t seem to understand that includes streambeds.
So, what does all this chaos mean? Can an attorney general opinion or memo be wrong? Does an AG memo supersede State Law? Does the Commission have the legal right to simply not enforce a statute within the Game and Fish Chapter of Law? Your guess is as good as ours! If you are a supporter of private property rights please contact the Game Commissioners (email addresses below), the Governor, and the Attorney General and tell them we need clarification on this issue right away. And if you would like more information regarding NMCOG’s official stance on this issue (and/or the history behind it), please email NMCOG at email@example.com
FINAL DISCUSSION ON THE BEAR AND COUGAR RULE
The Commission voted to adopt the following changes for the next 4-year cycle of the Bear and Cougar Rules. You can find the Dept.’s full summary of their proposed changes HERE.
Wildlife Management Area in the areas open to hunting with that license.
SUBSEQUENT DISCUSSION ON THE TRAPPING AND FURBEARER RULE
The Dept. provided a subsequent presentation on their proposed changes to the Trapping and Furbearer Rule. To date the Dept. has received an astounding 2400 public comments regarding this Rule. That’s substantially higher than any other Rule has ever received and most of those comments came from the anti-trapping community. However, the Dept. thankfully continues to stand by trapping as a necessary conservation tool.
The Dept. is going to propose making this rule a 4-year rule which would open for every 4-year cycle just like the other big game rules. Wildlife Chief Stewart Liley provided a lengthy presentation on the current trapping rule, why trapping is a completely necessary part of wildlife management, how the NM trapping regulation compare to other states, and how trapping is the only method of take that is actually recognized and regulated internationally through a 1997 agreement made between the US and the EU. The Dept. is proposing the following and you can read a full version of the Dept. summary of proposed changes HERE. Public comment is still open for this Rule and you can voice your opinion by sending an email to firstname.lastname@example.org
Next Commission Meeting – January 17, 2020 (Las Cruces, NM)
COMMISSIONER CONTACT INFORMATION
(You are welcome and encouraged to contact the Commissioners any time to voice your opinion)
Joanna Prukop - Chairwoman
District 4: Santa Fe, Taos, Colfax, Union, Mora, Harding, Quay, San Miguel, Guadalupe and Torrance counties.
Roberta Salazar-Henry – Vice Chairwoman
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 3: San Juan, McKinley, Cibola, Valencia, Sandoval, Los Alamos and Rio Arriba counties
District 5: Bernalillo county.
Appointed At-large – Conservation Position