Court provides big stream-access victory

By Norm Gaume, Adobe Whitewater Club
Former Interstate Stream Commission chair and Adobe Whitewater Club board member
From the Spring 2022 newsletter

New Mexico conservation groups won a victory for public access to streams and rivers with a March ruling by the state Supreme Court.

In 2020, the Adobe Whitewater Club of New Mexico, the New Mexico Wildlife Federation, and Backcountry Hunters and Anglers petitioned the New Mexico Supreme Court for a ruling that the state Game Commission’s 2018 rivers and stream privatization rule is unconstitutional.

On March 1, the New Mexico Supreme Court unanimously ruled that the state Constitution does not permit New Mexico’s waterways to be “privatized” and sealed off from public access. After a one-hour hearing and 15 minutes of deliberation, Chief Justice Michael Vigil announced that the Court agreed the issue of public stream access is of great public importance, the petitioners have standing, the Game Commission rule is unconstitutional, and all Game Commission certificates issued to the privatizers are void.

The voided privatization certificates had authorized three wealthy landowners to close boatable sections of the Upper Rio Chama and the Upper Pecos River and sections of the Mimbres River and two other small streams in southern New Mexico.

The Supreme Court reaffirmed New Mexicans’ constitutional right to paddle all of New Mexico’s rivers and streams. They said the water in New Mexico’s rivers and streams belongs to the public. The court said rivers are not for the exclusive benefit of private landowners.  The public has a recreational easement granted by the New Mexico Constitution. Paddlers have the right to travel these waterways unimpeded by private landowners and anglers have the right to fish them.

Trespass across private land to reach public waters was not at issue in this litigation and remains illegal. The paddling community recognizes and respects the rights of landowners to preclude trespass on private land bordering the river. Paddlers are dedicated to working with landowners to ensure all our natural resources are protected. However, the handful of wealthy landowners do not have the exclusive right to monetize public rivers and streams.

At the beginning of her term, then Gov. Susanna Martinez fired all Game Commissioners and replaced them with politically active private-property advocates.

Gov. Michelle Lujan Grisham also fired all the commissioners at the beginning of her term. She replaced them with a bipartisan group chaired by Joanna Prukop, a fish and game professional who was a cabinet secretary during the Richardson administration. The Governor fired Prukop after the Game Commission voted in 2019 to suspend the privatization rule and revisit it.

Vice Chair Jeremy Vesbach was removed from the Game Commission by the governor in 2021 after it denied five more privatization applications. The governor gave no reason but Vesbach stated he believed his position on stream access and his view that privatizing streams in NM was unconstitutional figured significantly on why he was dismissed.

In March 2022, Gov. Lujan Grisham appointed Deanna Archuleta to fill one of three vacancies. Archuleta is the senior director for federal relations at ExxonMobil, though prior to that she has a background in public service including working for The Wilderness Society and the Department of Interior under the Obama administration. Wildlife belongs to everyone and not exclusively to one user group or special interest. While the Game Commission does routinely concern itself with matters of controversy, the controversy can be defused if commissioners are allowed to consider all points of view without fear of losing their seats.

For more information, visit the Adobe Whitewater Club website.

Featured image from Adobe Whitewater Club

Court provides big stream-access victory