Despite clear rights to stream access provided by their state's constitution, upheld halfway through the 20th century by their state Supreme Court and reaffirmed in 2014 by their Attorney General, New Mexicans are about to lose their right to fish a substantial portions of their state's public waters thanks to a new piece of legislation that New Mexico governor Susana Martinez is expected to sign into law by April 10. As a result, stream access advocates in New Mexico, neighboring Utah and beyond are asking anglers everywhere to send a clear message to the governor that she must use her veto power to put a stop to legislation that would strip the public of its right to recreate on many of its state's waters.
In 1945, a landmark case in New Mexico -- known as Red River Valley -- led to its Supreme Court clearly spelling out the rights of its citizens to recreational access to all waters. Citing their state's constitution in its decision, the court stated clearly that New Mexico anglers and others have the right to access fish, float or wade those waters, even where they are bordered on both sides by private lands. The decision noted, “The small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks.” Yet for decades, private landowners have stretched barbed wire fences across streams where they border national and state forest land and the State GameCommission has told anglers they could be cited for trespass if they fished waters that flow through private lands, ignoring the rights of the citizens of New Mexico's citizens to recreate on its waterways.
As recently as 2014, amidst challenges and questions about the incompatibility of access rights provided by the state constitution and regulations put forth by the State Game Commission and Department of Game and Fish, the state Attorney General issued an opinion further clarifying New Mexicans' right to fish their streams and rivers. In the opinion, the AG stated unequivocally that "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. Although, as Red River makes clear, a person may not trespass on private property in order to gain access to public waters, a person using public waters to fish, including incidental activities such as walking, wading or standing in a stream bed, is not trespassing.”
But, despite the seemingly unquestionable rulings and opinions of the state's lawmakers and courts, challenges to stream access have continued. Since the Attorney General's opinion in 2014, the New Mexico Wildlife Federation and state legislators have requested multiple times that the State Game Commission bring their regulations in line with the court's 1945 decision, only to have the commission refuse to even address the issue. New Mexico Wildlife Federation's Communications director Joel Gay noted, "we've been trying to get back to 1945, but we're stuck in 2015."
“It’s a sad day,” Gay continued, “when our top state officials are bending over backward to support a few private landowners rather than the people of the state and their constitutional right to fish and float our rivers and streams. Instead of pandering to special interests, our governor and Legislature should be standing up for everyday New Mexicans.”
Challenges to stream access in New Mexico have been primarily supported by private land and lodge owners which -- on the basis of State Game Commission regulations -- control access to water on rivers such as the San Juan, Chama and Pecos, where anglers have been barred from fishing for decades despite New Mexicans' existing right to access these waters. And if New Mexico's governor signs this new legislation -- Senate Bill 226, which passed in the New Mexico House of Representatives by a single vote -- into law, New Mexicans' constitutionally provided right to recreate on their state waters will be further muddied and farther out of reach.
The developing situation in New Mexico has striking parallels to the stream access battle in neighboring Utah, which the Utah Stream Access Coalition (USAC) has been a similar decision which stripped Utah anglers of their constitutionally provided right to access its public waters. Of the New Mexico legislation, USAC president Kris Olson noted, "For us in Utah, it’s disappointing, but it is predictable that other states would look to the 'Utah model for river privatization’ and try to do the same. We have made that argument for years as to why it’s important for people outside of Utah to be engaged and informed as to what USAC is doing. We’re fighting a movement - a perverse and pervasive movement - to privatize our natural resources. To take 'ours' and make it 'mine.' If New Mexico falls, it’s not a matter of if another state will lose stream access, but when. Access is tantamount to conservation, and I think that idea is starting to get more national attention, unfortunately because the people are starting to lose. It’s a discussion we need to be having - it’s a wake-up call."
Both Gay and Olson warn that SB 226 will lead to further battles on stream access and will require, according to Gay, "the public to foot the bill for defending its right to stream access instead of the state defending its constitutionally provided right to recreate on these waterways" -- through costly lawsuits and court cases. Other possible impacts include concentrated pressure on undisputed public tracts of water and a hit to New Mexico's $268 million dollar a year sport fishing economy.
Again citing Utah as a parallel, Olson warns that anglers and others are mobilized to fight for their rights to access, noting that "When Utah's stream access was taken in 2010, there was no USAC. That action by the legislature and governor dragged us out of the rivers and put us on the Capitol steps - and ultimately in the state district courts. We had to find counsel, we had to find ways to fund lawsuits, we had to find legislators willing to sponsor access friendly legislation, and we had to inform the public as to what they'd lost so they would join us in this fight, we had to mobilize industry support. We’ve done that now. One of our two lawsuits just finished trial in early March, and the other will go to trial in late August."
"Many of those legal issues at hand here will be at play in New Mexico, too. USAC’s counsel have become the experts on this issue. Our membership has grown from a rag-tag group to over 3,500 people, and growing every day. Both the fly fishing industry (AFFTA and Simms in particular) as well as the broader outdoor industry have stepped up to speak out against taking away access here in Utah. This is a conversation people are already having - and I think New Mexico can really benefit from the momentum and support for these issues that’s already in place. They’ll face their own hurdles, for sure, but there’s a lot we’ve figured out here in Utah that can apply. Of course, the best option would be to stop this bill on the Governor’s desk. The number one lesson we’ve learned is how much easier it is to keep a bill from becoming law than to overturn it once signed. Get a veto, and then return next session with reasonable, sensible compromise that everyone can agree with."
Gay added, “New Mexico should have the same right of recreational stream access as Montana’s citizens and visitors. The sky has not fallen because people can freely fish and float. But instead our state appears headed down the path taken by Utah, where it will take expensive and unnecessary litigation to get to the same point. We are hoping to avoid that, and we can – if the governor would just veto SB 226.”
To make your voice heard on the issue and tell Gov. Martinez to veto New Mexico SB 226, head here. Or, as the USAC suggests, "Call the Governor right now and tell her to veto SB 226. They are tallying votes in the office and your 30-seconds matters - 505-476-2200."