NMCOG is strongly against giving the general public unfettered access to privately owned stream-beds!
Not only is waking and wading in a stream-bed with private property along both sides of the bank against the law but unrestricted access would severely disincentivize landowners from making improvements to riparian areas and allowing the public to trample in stream-beds is simply not beneficial to the fishery resource.
Not only is waking and wading in a stream-bed with private property along both sides of the bank against the law but unrestricted access would severely disincentivize landowners from making improvements to riparian areas and allowing the public to trample in stream-beds is simply not beneficial to the fishery resource.
UPDATE: STREAM ACCESS LAWSUIT FILED IN NM SUPREME COURT
On April 17, 2020 NMCOG along with NM Farm Bureau, NM Cattle Growers, Upper Pecos Watershed, and a number of private landowners filed a brief in the New Mexico Supreme Court regarding the “stream access” issue. The brief was filed in response to a petition for mandamus requested by the Adobe White Water Club, NM Wildlife Federation, & Back Country Hunters and Anglers which essentially asked the court to invalidate the NMDGF Landowner Certification of Non-navigable Water. The petition basically states that the petitioners believe that this rule is invalid because the waters of NM are constitutionally owned by the public which gives any individual the ability to trespass onto private property at any time, so long as the access is accomplished through a streambed and in the name of recreation.
NMCOG has always been strongly against giving the general public unfettered access to privately owned stream-beds! Not only is waking and wading in a privately owned against the law but giving the public unrestricted access would severely disincentivize landowners from implementing wildlife and habitat conservation practices.
As stated in our response brief “if Petitioners believe they have the right to walk and wade on private property, challenging a rule that has no bearing on that right is not the appropriate way to litigate their issues. The Rule was validly promulgated, comports with constitutional law, and does not dictate ownership of private property. The relief Petitioners seek will not alter the existing law, and striking the Rule will not give the public license to utilize privately owned land. The Petition is wholly without merit, and should be rejected by this Court.”
If you are still having trouble understanding this extremely complicated issue (you are not alone) we encourage you to please read both lawsuits and make up your own mind about where you stand on the issue. Click HERE to read the NMCOG suit. Click HERE to read the Adobe Whitewater suit.
NMCOG also recently participated in a pod-cast interview with Nada Grande Outdoors (S3:E11 Everybody Has a Seat At the Table). A portion of the hour long show focused on this issue. While we encourage you to listen to the entire pod-cast, you can find the discussion of the stream access issue at 29:26.
On April 17, 2020 NMCOG along with NM Farm Bureau, NM Cattle Growers, Upper Pecos Watershed, and a number of private landowners filed a brief in the New Mexico Supreme Court regarding the “stream access” issue. The brief was filed in response to a petition for mandamus requested by the Adobe White Water Club, NM Wildlife Federation, & Back Country Hunters and Anglers which essentially asked the court to invalidate the NMDGF Landowner Certification of Non-navigable Water. The petition basically states that the petitioners believe that this rule is invalid because the waters of NM are constitutionally owned by the public which gives any individual the ability to trespass onto private property at any time, so long as the access is accomplished through a streambed and in the name of recreation.
NMCOG has always been strongly against giving the general public unfettered access to privately owned stream-beds! Not only is waking and wading in a privately owned against the law but giving the public unrestricted access would severely disincentivize landowners from implementing wildlife and habitat conservation practices.
As stated in our response brief “if Petitioners believe they have the right to walk and wade on private property, challenging a rule that has no bearing on that right is not the appropriate way to litigate their issues. The Rule was validly promulgated, comports with constitutional law, and does not dictate ownership of private property. The relief Petitioners seek will not alter the existing law, and striking the Rule will not give the public license to utilize privately owned land. The Petition is wholly without merit, and should be rejected by this Court.”
If you are still having trouble understanding this extremely complicated issue (you are not alone) we encourage you to please read both lawsuits and make up your own mind about where you stand on the issue. Click HERE to read the NMCOG suit. Click HERE to read the Adobe Whitewater suit.
NMCOG also recently participated in a pod-cast interview with Nada Grande Outdoors (S3:E11 Everybody Has a Seat At the Table). A portion of the hour long show focused on this issue. While we encourage you to listen to the entire pod-cast, you can find the discussion of the stream access issue at 29:26.
STREAM ACCESS RUMOR VS FACT
There is a move being made to give the general public access to recreate on all privately owned water-ways in the state of New Mexico. This initiative is primarily being pushed by two organizations; the New Mexico Chapter of Back Country Hunters & Anglers and the New Mexico Wildlife Federation. The initiative stems from the passage of a 2015 law commonly referred to as the NM Stream Access Law. The law codified 30 years of NM Department of Game and Fish regulation that said that an individual needed the written permission of the landowner in order to fish in waters that flow through private property. Recently these two organizations have published an overwhelming amount of misinformation and have succeeded in creating widespread confusion regarding what is legal and what is illegal in regards to fishing in the state of New Mexico. In an attempt to smooth the waters (pun intended) here’s our NMCOG Rumor vs Fact report.
RUMOR: The NM Stream Access law prevents access to many NM rivers and streams.
FACT: Approximately 70% of the waters in NM are located on public land. This law only refers to the 30% of waterways that are located within private lands. And only about 10% of the waters on private property can be fished. The remaining 20% are torrential rain event waterways that are dry the majority of the year.
RUMOR: This law prevents anglers from accessing their favorite fishing hole on private land.
FACT: For 30 years prior to the passage of this law it was a requirement of the New Mexico Department of Game & Fish (NMDGF) that you obtain written permission of the landowner in order to fish in waters on private land. This legislation merely codified the existing NMDGF practice.
RUMOR: NM Supreme Court case (Game Commission Vs. Red River Valley - 1945) allows for walking/wading in stream beds.
FACT: The Red River case 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 (i.e. touching the streambed).
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. BUT Because NM’s waters were considered non-navigable at statehood, streambeds are considered the private property of the landowner. This is opposed to states whose waters were considered navigable at statehood and the ownership of the streambed remains with the state.
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 unfettered access to stream beds that are completely dry for 90% of the year.
RUMOR: The NM State Game Commission reversed the law when they placed a moratorium on the rule that allows landowners to certify their waters as non-navigable.
FACT: Just because the NM State Game Commission has chosen to revise the Landowner Certification of Non-navigable Waters Rule does not mean that the NM Stream Access law goes away. It is still considered trespass to walk or wade in a streambed that has private property on both sides of the bank. The Game Commission
Chairwoman has publicly stated that the NMDGF will continue to enforce criminal trespass as they have for the past 30 years which includes trespass by walking or wading in a privately owned streambed.
RUMOR: The quality of the fisheries on NM’s public land is equal to the quality on the private land.
FACT: It is an unfortunate reality that in NM 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 streambeds and riparian areas along the waterways located within private lands. However, a lack of personal responsibility for the public waters has created a situation where public riparian areas are abused to the detriment of the fishery. This is the reason why the private land waters are so heavily desired to be recreated upon by the public. The responsible stewardship efforts implemented and paid for by our private landowners should not be undermined.
RUMOR: The NM Stream Access law prevents access to many NM rivers and streams.
FACT: Approximately 70% of the waters in NM are located on public land. This law only refers to the 30% of waterways that are located within private lands. And only about 10% of the waters on private property can be fished. The remaining 20% are torrential rain event waterways that are dry the majority of the year.
RUMOR: This law prevents anglers from accessing their favorite fishing hole on private land.
FACT: For 30 years prior to the passage of this law it was a requirement of the New Mexico Department of Game & Fish (NMDGF) that you obtain written permission of the landowner in order to fish in waters on private land. This legislation merely codified the existing NMDGF practice.
RUMOR: NM Supreme Court case (Game Commission Vs. Red River Valley - 1945) allows for walking/wading in stream beds.
FACT: The Red River case 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 (i.e. touching the streambed).
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. BUT Because NM’s waters were considered non-navigable at statehood, streambeds are considered the private property of the landowner. This is opposed to states whose waters were considered navigable at statehood and the ownership of the streambed remains with the state.
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 unfettered access to stream beds that are completely dry for 90% of the year.
RUMOR: The NM State Game Commission reversed the law when they placed a moratorium on the rule that allows landowners to certify their waters as non-navigable.
FACT: Just because the NM State Game Commission has chosen to revise the Landowner Certification of Non-navigable Waters Rule does not mean that the NM Stream Access law goes away. It is still considered trespass to walk or wade in a streambed that has private property on both sides of the bank. The Game Commission
Chairwoman has publicly stated that the NMDGF will continue to enforce criminal trespass as they have for the past 30 years which includes trespass by walking or wading in a privately owned streambed.
RUMOR: The quality of the fisheries on NM’s public land is equal to the quality on the private land.
FACT: It is an unfortunate reality that in NM 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 streambeds and riparian areas along the waterways located within private lands. However, a lack of personal responsibility for the public waters has created a situation where public riparian areas are abused to the detriment of the fishery. This is the reason why the private land waters are so heavily desired to be recreated upon by the public. The responsible stewardship efforts implemented and paid for by our private landowners should not be undermined.