The State Game Commission meeting June 18 was a fiasco. Surprise and confusion were evident on faces — including those of all the commissioners — except for Chairwoman Sharon Salazar Hickey, who caused the commotion.
In an apparent attempt at transparency, the chairwoman chose an awkward way to disclose that her daughter was employed by the law firm that represents all the applicants attempting to close public waters to New Mexicans. Yet she strongly asserted she could be fair and impartial in voting on the five contentious applications before the commission. At her direction, this potential conflict of interest will be studied and a report issued to the commission before its August meeting. The New Mexico Governmental Conduct Act (10-16-3 NMSA 1978) clarifies that “ethical principles of public service” means commissioners must treat their positions as a “public trust” and “shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.”
Anyone following this issue since 2019, when the current Commission took it up and I was chairwoman, may now understand there is only one fundamental question of importance: Is Rule 19.31.22, the Landowner Certification of Non-Navigable Water Rule, constitutional under Article XVI Section 2 of the state constitution. All other claims, arguments and justifications are irrelevant. Like me, many, including the applicants’ attorney and the current governor, have stated that this matter will only be resolved in the courts.
A spotlight is now on the New Mexico Supreme Court, where a writ of mandamus was filed more than a year ago in March 2020 on behalf of anglers and boaters to challenge the constitutionality of Rule 19.31.22. We all await a court ruling. How soon might the justices rule?
A second spotlight is on the governor. The recent untimely death of Commissioner David Soules leaves a vacancy intended to be filled by a conservationist with “a demonstrated history of involvement in wildlife and habitat protection issues and whose activities or occupation are not in conflict with wildlife and habitat advocacy” (17-1-2 NMSA 1978). Will she ask candidates their positions on non-navigable water certification, as she has asked in the past? Will an appointment be made before August?
Lastly, a third spotlight is on the attorney for all non-navigable water certification applicants. He was highly upset after the chairwoman’s actions on June 18 and protested the delay. He has used the courts a number of times to force the issues.
Things have gotten very messy since the governor wrongfully removed me as chairwoman of the commission in December 2019. I believe she was trying to keep me from opening the Non-Navigable Water Rule for amendment, repeal or replacement after I asked the Attorney General’s Office for advice on its constitutionality. It officially came back stating that Rule 19.31.22 “is unconstitutional and unenforceable.”
Rule 19.31.22 is an ill-conceived attempt to privatize New Mexico’s public waters. It’s predicated on a failed legislative attempt in 2015 to give the State Game Commission extraordinary powers over New Mexico waters. As introduced in 2015, Senate Bill 226 was stripped of all substantive language in its first committee hearing. Eventually, the law (17-4-6C) signed by Gov. Susana Martinez contained only one small relevant paragraph essentially restating the state’s trespass law. Rule 19.31.22 is a dishonest administrative attempt to accomplish something that couldn’t be accomplished legislatively. I firmly believe it must be repealed or declared unconstitutional, but I, too, know the courts will decide.