In New Mexico, water is scarce. Perhaps that’s why people guard the right to access streams and rivers — even those across private property — so jealously.

That’s also why state residents, including U.S. Sen. Martin Heinrich, are watching the State Game Commission so closely.

On Friday, the commission will consider requests from five landowners to certify waterways that cross their properties as nonnavigable — which would mean, contrary to New Mexico law and tradition, the public loses access to the water. A federal court has ordered the hearing.

Heinrich is so incensed by this possibility that he wrote to the commission, reminding it that a 1945 state Supreme Court ruling already has settled the matter.

“The rule leaves no room for the commission to give wealthy private landowners control over every stream, river and watercourse in New Mexico,” Heinrich wrote in his letter. “And doing so would violate longstanding principles of New Mexico law.”

The applications are being made under a rule passed in 2017 when Susana Martinez was governor. It allowed property owners to bar access to waters flowing through their lands if they cannot be navigated.

The state Supreme Court is scheduled to hear a case deciding the legality of the Martinez-era rule. If nothing else, it seems foolish for the current commission — a seven-person body — to make any decision until the court issues a ruling. That’s because at present, the court has ruled that waters belong to the public.

The term, “nonnavigable,” is particularly important in New Mexico. Most rivers and streams can’t be navigated; they dry up much of the year or are simply too small to carry a boat or canoe. Even the Rio Grande isn’t navigable, Heinrich points out — it can’t support waterborne commerce.

Should landowners be able to close off those streams, fishing would be limited in New Mexico in ways that are foreign to our way of life.

The issue arose recently in connection with federal protections for surface water. The U.S. Environmental Protection Agency had stated federal protections only covered navigable waters; that left out most of New Mexico’s waterways, an invitation to pollute.

On Friday, the EPA announced it plans to replace those Trump-era rules and restore protections as it draws up a more “durable” definition of “waters of the United States.” That’s a direct result of one of President Joe Biden’s executive orders, issued Jan. 20, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

In the state Supreme Court’s decision in the 1945 Red River Valley case, justices referred to a portion of the state constitution that lays out that waters in natural streams belong to the public, noting that under Indian, Spanish and Mexican law and practices, all people had the right to fish in streams. Past attorneys general have agreed the public can’t be excluded from waters running on or through private property, too.

That said, we don’t blame landowners for wanting to safeguard their property. Too often, people traversing the rivers to fish, boat or swim toss trash and are careless with matches. Private property owners are worried for their land and buildings. We have written repeatedly about the messes left behind on our open lands — and people who want to be able to fish in peace, no matter where the water takes them, need to do a better job.

Leave no trace behind is a worthy slogan. Individuals using the streams also are not allowed to trespass on the banks; that is private property. They can’t cross private property to reach the streams, either.

But in New Mexico, water belongs to all of us. Upending that tradition goes against the best of our heritage. Game commissioners — and the governor ultimately responsible for their actions — must keep that in mind.

(4) comments

Ramon David

"Even the Rio Grande isn’t navigable, Heinrich points out — it can’t support waterborne commerce." Hmm.... I think the rafting industry would disagree.

Sigmund Silber

Being able to go one way does not count as being navigable. This has been before the U.S. Supreme Court twice. To prove it was navigable some tried to bring a boat up near El Paso and they perished. For years logs from timber operations were floated down the Rio Grande. Again that does not count. Elephant Butte Dam was allowed to be built because of the determination that the Rio Grande in this area is not navigable. Senator Heinrich is correct. Navigable refers to being able to support commerce. If you want the rulings check U.S. v. Rio Grande Dam & Irrigation Company. Or you can refer to the Hamele Report on the Rio Grande or my article on the Hamele Report. I write under the name Sig Silber. There is an electronic version of the Hamele Report at UNM.

Mangas Coloradas

Bravo! This is such a huge issue for all New Mexicans who want to recreate on or near our free flowing streams. I sympathize with landowners who complain about trash being thrown along watersheds but that still doesn't give them license to take away a fundamental right of the citizenry to walk along and fish those streams. Many of those streams by the way have been stocked and have fish in them due to the tax dollars of all New Mexicans. To then turn around and say that those public resources are only available to a few private landowners is an outrage. Many states have laws allowing the freedom to walk up to the high water marks of streams e.g. Montana, Wisconsin, Michigan. These states are famous for their fishing and the landowners along their streams seem to be able to live with those laws just fine and their property values certainly don't seem to have been harmed.

Ramon David

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