Michael Sloane, the director of the New Mexico Department of Game and Fish, said legislators need to address questions surrounding the public’s right to access water that crosses private lands.
Sloan spoke as part of a panel during the interim Legislative Water and Natural Resources Committee on Monday at San Juan College in Farmington.
The questions about access come in light of a New Mexico Supreme Court ruling that the public can wade in waters and along the banks even if the waters cross private property. This does not give the public the right to trespass on private lands to access a stream or river. However, if the public can access the stream or river from a public location, they can wade up the stream bed or walk along the bank as it crosses private property.
The U.S. Supreme Court declined to take up the matter earlier this year, which means the New Mexico Supreme Court ruling is final.
The Chief Deputy Attorney General James Grayson explained that the court ruling regards the stream bed and banks as a public easement, which means the public has the right to access it.
Grayson said the New Mexico Office of the Attorney General has investigators looking into incidents where waterways are blocked and that the state is ready to enforce the ruling.
These blockades can be potentially dangerous. For example, a single strand of barbed wire stretched across a river can injure people floating the waterway.
Jesse Deubel, the executive director of New Mexico Wildlife Federation, provided images of various barriers across water and he said some of the waterways in New Mexico have barriers across them that are “truly life threatening” to people recreating.
Deubel said there are better options, including fencing that can keep livestock in while also allowing rafters to pass.
But Sloane said his agency does not have authority over fencing – which is often installed over waterways in the state and can create problems for people recreating on rivers. Furthermore, Sloane said the ruling does not specify how far onto the bank people can walk.
But Sen. Antoinette Sedillo Lopez, D-Albuquerque, questioned whether legislation is needed or if the Department of Game and Fish could set those definitions in regulation.
“My concern with that is normally the legislature sets broader policy and the details of five or six feet is better decided by the agencies that are closer to the action,” she said, referencing Sloane saying he does not know what reasonable access means in terms of how far onto the bank a member of the public could walk when the waterway crosses private lands.
She encouraged the department to host a rule-making process that would address the concerns including what fences can be used to contain livestock that do not interfere with the rights of the public to access the waterways.
Rep. Jack Chatfield, R-Mosquero, argued that most waterways do have fences across them in New Mexico because of the prevalence of ranching. He said if the ranchers don’t fence the property, including the waterways, and the cattle get on roads, people could get injured and the livestock owner could get sued.
Grayson said the ruling does not prohibit fencing; however, it does require that reasonable access is given to the public. That could mean a way for the public to get around the fencing across the waterway.
In Colorado, the state’s high court ruled in June that Roger Hill had no legal standing to argue the state’s rivers were public property if they were navigated for commerce in 1876.
Hill’s case produced hundreds of pages of briefings in the Colorado Supreme Court, with the Colorado Attorney General, recreational user groups, landowner advocates, environmental lawyers and state water guardians all wading in with perspectives on Colorado’s murky public access rules around rivers.
Those groups charged their arguments with perspectives on the public trust doctrine: The public has rights to natural resources including “air, running water, the sea and its shore.” And the equal footing doctrine: That states joining the United States of America gained title to riverbeds in waterways that were navigable. And the state argued that lawmakers, not a solitary angler, should be in charge of deciding access to rivers.
All these subjects “are ultimately irrelevant,” Colorado Supreme Court Justice Melissa Hart wrote in the ruling.
“Rather, this case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment ‘that a river segment was navigable for title at statehood and belongs to the state,’” Hart wrote. “He does not.”
