UPDATED MAY 9, 2023
This will potentially be our last update regarding the stream access issue, at least for the foreseeable future. The matter came to a decisive close on February 27th when the US Supreme Court declined to review the NM Supreme Court (NMSC) ruling from March 1, 2022. This means the NMSC ruling is the ultimate law of the land. The NMSC ruled that, while the streambeds are owned by the landowner, anyone recreating in the publicly owned water crossing private property has an easement to access that water for recreational purposes. New Mexico is now the only state in the nation that will allow unrestricted recreational access to all non-navigable waterways. And we will all just have to become okay with this situation and find a way to thrive because...well...that’s the way it is. It unfortunately no longer matters that NMCOG thinks unfettered access breeds reckless behavior nor does it matter how landowners have historically managed the waterways on their private property.
Under this new law, landowners will be forced to tolerate all types of recreation in the waters located in their private streambeds. And because the term “recreation” is not defined in the NMSC decision, we assume all types of recreation are to be permitted. Fishing, hiking, hunting, horseback riding, mountain biking, dog walking, you name it. This very wide interpretation of the ruling likely will not have an enormous impact on the fishing industry. This is because NM streams that are legitimate private land fisheries are fairly remote and far too isolated to experience an influx of hikers or bikers destroying miles of stream bed. It’s actually the waterways that are just a trickle, are muddy, or are dry for much of the year that stand to see the most impact from
trespass...I mean access.
NMCOG still feels strongly that the NMSC decision clearly states a recreator must be standing within the free flowing
water of the stream in order for the access to be legal however, this is not everybody's interpretation. In fact there are a growing number of people who are interpreting the decision to say that walking along the dry ground is a form of “incidental
contact”. NM State Representative Matthew McQueen is of this mindset and is basically leading the charge to give recreators access to stream banks on private property as well as dry arroyo beds. And Representative McQueen is additionally pushing to have cattle fences removed from across all waterways under the interpretation that walking/wading access cannot be
obstructed (this might make sense for navigable waters but for tiny creeks or dry arroyos?).
Interestingly, the proponents of unfettered access, who previously bushed aside our concerns regarding torrential flow waterways as crazy talk, are suddenly pushing the NM Dept. of Game and Fish to “clarify the NM Supreme Court ruling”. The problem is the ruling is full of vague and contradictory language. What exactly can NMDGF be expected to clarify other than to just
simply regurgitate the confusing words of the NMSC written decision, as the Dept. has already done.
The NMDGF doesn’t seem the least bit interested in opening the stream access pandora’s box. In fact the Dept. as well as the
Governor’s office historically haven’t been willing to touch this issue with a 10 foot pole. And without some unexpected direction from the Game Commission, this hands off strategy seems likely to continue given the giant ball of litigation just waiting to unravel. It’s almost certain that there will be more lawsuits in the not too distant future. Removal of fences will no doubt be at the forefront.
That said, NMCOG has decided to do a bit of a pivot on this issue. So far the outfitting industry has not experienced the negative impacts we feared. And it seems like this might be the right time for us to redirect our focus on how best to serve the outfitting industry under this new legal landscape. We will continue to promote fisheries conservation and responsible stewardship with
thriving riparian ecosystems being promoted always above recreational overuse.
This will potentially be our last update regarding the stream access issue, at least for the foreseeable future. The matter came to a decisive close on February 27th when the US Supreme Court declined to review the NM Supreme Court (NMSC) ruling from March 1, 2022. This means the NMSC ruling is the ultimate law of the land. The NMSC ruled that, while the streambeds are owned by the landowner, anyone recreating in the publicly owned water crossing private property has an easement to access that water for recreational purposes. New Mexico is now the only state in the nation that will allow unrestricted recreational access to all non-navigable waterways. And we will all just have to become okay with this situation and find a way to thrive because...well...that’s the way it is. It unfortunately no longer matters that NMCOG thinks unfettered access breeds reckless behavior nor does it matter how landowners have historically managed the waterways on their private property.
Under this new law, landowners will be forced to tolerate all types of recreation in the waters located in their private streambeds. And because the term “recreation” is not defined in the NMSC decision, we assume all types of recreation are to be permitted. Fishing, hiking, hunting, horseback riding, mountain biking, dog walking, you name it. This very wide interpretation of the ruling likely will not have an enormous impact on the fishing industry. This is because NM streams that are legitimate private land fisheries are fairly remote and far too isolated to experience an influx of hikers or bikers destroying miles of stream bed. It’s actually the waterways that are just a trickle, are muddy, or are dry for much of the year that stand to see the most impact from
trespass...I mean access.
NMCOG still feels strongly that the NMSC decision clearly states a recreator must be standing within the free flowing
water of the stream in order for the access to be legal however, this is not everybody's interpretation. In fact there are a growing number of people who are interpreting the decision to say that walking along the dry ground is a form of “incidental
contact”. NM State Representative Matthew McQueen is of this mindset and is basically leading the charge to give recreators access to stream banks on private property as well as dry arroyo beds. And Representative McQueen is additionally pushing to have cattle fences removed from across all waterways under the interpretation that walking/wading access cannot be
obstructed (this might make sense for navigable waters but for tiny creeks or dry arroyos?).
Interestingly, the proponents of unfettered access, who previously bushed aside our concerns regarding torrential flow waterways as crazy talk, are suddenly pushing the NM Dept. of Game and Fish to “clarify the NM Supreme Court ruling”. The problem is the ruling is full of vague and contradictory language. What exactly can NMDGF be expected to clarify other than to just
simply regurgitate the confusing words of the NMSC written decision, as the Dept. has already done.
The NMDGF doesn’t seem the least bit interested in opening the stream access pandora’s box. In fact the Dept. as well as the
Governor’s office historically haven’t been willing to touch this issue with a 10 foot pole. And without some unexpected direction from the Game Commission, this hands off strategy seems likely to continue given the giant ball of litigation just waiting to unravel. It’s almost certain that there will be more lawsuits in the not too distant future. Removal of fences will no doubt be at the forefront.
That said, NMCOG has decided to do a bit of a pivot on this issue. So far the outfitting industry has not experienced the negative impacts we feared. And it seems like this might be the right time for us to redirect our focus on how best to serve the outfitting industry under this new legal landscape. We will continue to promote fisheries conservation and responsible stewardship with
thriving riparian ecosystems being promoted always above recreational overuse.