Rio Chama, Pecos focus of privatization scheme

By Steve Harris, NM Paddlers Coalition

Fishermen and river-running enthusiasts in New Mexico are the targets of a stealthy and well-funded campaign to bar recreational access to segments of the Rio Chama and Pecos Rivers, among others, where they cross private land.

The principal battleground is the New Mexico Department of Game and Fish, where five wealthy private landowners have pending applications for “certificates of non-navigability.” These certificates empower them to outlaw recreational entry to private property via the rivers. The Game Commission has postponed its decision on the new round of non-navigable applications to its regular meeting on August 12.

Please write the Game Commission at NonNav.Comments@state.nm.us requesting that it deny the five applications at the August 12 hearing. Per the flawed rule, public comments must be written — no oral comments allowed—and submitted by 5 pm July 29.

The landowner applicants have rallied under a banner styled the “New Mexico Habitat Conservation Initiative,” which, in 2015, brought legislation that sought to empower the Commission to declare portions of the state’s streams to be “non-navigable,” subjecting anglers and others to prosecution for trespass. The New Mexico Legislature declined to grant the Game Commission the authority the group of landowners sought.

Attorney Marco Gonzales is the public face of HCI and the lobbyist who presumably authored both the mostly failed SB 226 and Game and Fish’s over-reaching rule (DGF staff maintains that it had no role in crafting it). Gonzales steered SB 226 to its much-amended conclusion in 2015. He may have written the rule, which contains exact language removed from the law. His clients privatization certificates were issue Dec. 31, 2018, the last day of Governor Martinez’s administration.He represents the five current applicants for stream privatization. And he made more than $100,000 in campaign donations to candidates for high office during the 2018 election cycle.

The privatization rule was adopted in 2017 by a previous Game Commission, under then-Chair Paul Kienzle. Its language makes approving landowner’s applications almost a foregone conclusion. If an application is correct in form, it will be accepted by the Game and Fish director and rubber-stamped by the commission. The rule defies due process, requiring speedy action while permitting no testimony from parties who may, with evidence, oppose an application (e.g. the state’s many anglers and river-runners). Most egregiously, it allows applicants to appeal unfavorable decisions to state district court, while denying such a privilege to opponents.

After the 2018 election, the Game Commission decided to revisit the HCI scheme. Encouraged by no less than three attorneys generals’ opinions citing the public nature of the water flowing in New Mexico’s rivers and streams, the Game Commission, at its November 2019 meeting, decided to extend a moratorium on new applications and reopen the rule, with an eye to repeal or replacement. This move might have brought the commission into compliance with Article XVI — the public ownership of water provision — of the state Constitution and with case law affirming a right of public access.

At the end of 2019, Gov. Michelle Lujan Grisham declined to re-appoint Game Commission Chair Joanna Prukop, citing “differences of opinion.” Prukop has said her removal was a result of the commission’s reconsideration of the river-access rule (Prukop’s Santa Fe New Mexican op-ed is linked below).

In March 2020, counsel for three New Mexico recreation groups (the Adobe Whitewater Club, Backcountry Hunters and Anglers, NM Wildlife Federation) petitioned the state Supreme Court for a writ of mandamus, seeking clarification of whether the stream privatization rule is constitutional. US Sens. Heinrich and Udall and NM Wild filed amicus briefs in support. We are still awaiting a decision.

HCI, however, seems in no mood to wait. Last year, according to a source, Gonzales threatened to unleash a “tsunami of litigation” against the Game Commission if it did not approve the already-submitted applications. And he has begun to deliver: in March, federal magistrate Steve Yarborough, ruling on an HCI legal action, issued a declaratory judgement ordering the department to hear the pending applications. The General Services Department’s Risk Management Division declined to issue a notice of appeal, though doing so might have spared the Game Commission a great deal of time and potential embarrassment, should the rule be revoked.

This is where matters stand today. The Game Commission probably shouldn’t possess the power to decide who will enjoy the Rio Chama and Pecos River or other New Mexico streams. But thanks to this rule, they do. As the stream-access issue illustrates, money and influence are real, sharp tools in today’s world of public policy-making.

At its beginning, the ostensible objective of the Habitat Conservation Initiative seemed to be to protect private fishing waters that landowners had created or restored at their own expense. Much of the public testimony at legislative hearings in 2015 decried an invasion of anglers on the Pecos River and the trash and other depredations they brought with them. Certainly, no one deserves to have their privacy so invaded.

It may simply be that, in the landowners’ view, open access is a slippery slope to disastrous overuse of the public water and its finny residents. There is some logic behind this fear, though a civil discourse would have been the more prudent route to finding solutions to New Mexico’s growing habitat, access and privacy problems. There’s a darker possible motive as well, a desire of privileged newcomers to lock up swaths of New Mexico’s most desirable little rivers for their own exclusive retreats.

For now, the responsible users aren’t ready to surrender our right to boat or fish.

Joanna Prokop’s editorial in the Santa Fe New Mexican – Conflict, confusion reign at State Game Commission
Money Trails – New Mexico Habitat Conservation Initiative
Adobe Whitewater Club – written comment to Game Commission (with additional links)
New Mexico Game & Fish Commission – meetings and agendas

Featured image by J. N. Stuart via Flickr.

Rio Chama, Pecos focus of privatization scheme