Restricted access to waterways on private land could prompt legal battle

Taos News By Staci Matlock The Pecos River starts in the rugged mountains of the Pecos Wilderness on public land and winds its way down a narrow tree-lined canyon east of Santa Fe. The river is popular year-round with anglers, hikers and campers. The river, like others in the state, also cuts through private land. It waters farms like Ralph Vigil’s near the village of Pecos. But Vigil said too often, anglers and waders leave the river to avoid a tangle of brush and trees blocking the water, traipse across his land without permission and leave a mess along the way. They’ve cut fences, stolen from his garden and left trash behind. “They are disrespectful of our land,” said Vigil, the ninth-generation in his family to work the land. “They ruin areas where we spend money and break our backs trying to improve the river.” Vigil was among those who successfully pushed for a bill in the most recent legislative session that would make it illegal for anglers, boaters, hikers and others to wade or walk a public stream or river where it crosses private property without written permission from the landowner. The bill is now on the desk of Gov. Susana Martinez, who has not indicated whether she will sign it into law. Even if she does, it could be just the start of a prolonged legal battle expected to be launched by opponents who say the measure is unconstitutional and puts private interests above the public good. “There’s little question in my mind that, although the language used avoids stating it explicitly, the bill was intended to privatize public waters,” said Michael Hayes of the Adobe Whitewater Club of New Mexico. At issue is not only when and how the public can access streams and rivers across private land, but the property values of people who bought land along those waters, thinking they had exclusive rights to enjoy them. New Mexico isn’t the only state grappling with disputes between private landowners and the public over access to rivers and streams. Montana has a law that recognizes the right of the public to wade and walk as greater than the right of a private property owner to restrict public access. Colorado has a law that allows the public to float a river or stream across private property, but not set foot or drop anchor on the private streambed. Both laws have been challenged. By law, water flowing down the Pecos River and other New Mexico streams is public. But the streambed is sometimes private. A long-simmering dispute over whether anglers, bird watchers and people portaging a boat can walk in a streambed across private land led to the bill. “The real tragedy and irony is that the public will have to litigate at their expense for something that was theirs to begin with, the use of public waters,” said Garrett VeneKlasen, executive director of the New Mexico Wildlife Federation, which opposed the bill. But sportsman Jim Welles of Albuquerque said he was surprised stream access had become an issue. “I’ve always understood that privately posted land was just that,” said Welles, president of the New Mexico Council of Outfitters and Guides, which represents about 60 outdoor businesses. “I have always obtained written permission or verbal permission to access that private land.” The state Department of Game and Fish has told anglers for decades they are trespassing if they wade streams across private land without permission. The department’s website states that a person is trespassing if he or she “enters private property that is legally posted and they do not have written permission to be there. This includes stream and river bottoms located in private property.” But attorney Jason Kerkmans, a lifelong fly fisherman who studied the lawsuits and rules around stream access, said the department has no legal basis for restricting public access to streams across private land. Like Welles, Kerkmans grew up understanding the state Department of Game and Fish had a rule requiring permission from a landowner to follow a stream across private property. But as a law student, he looked more closely and found nothing to back up the rule. “Both sides of this issue have been wrong on what the law is, at different times,” Kerkmans said. “Ultimately, this will be something the Supreme Court will have to decide.” Kerkmans thinks the state constitution, and a prior state Supreme Court decision in a 1945 case known as Red River Valley, makes the public’s right to walk a stream across private land superior to the right of the property owner to restrict access. Rep. Luciano “Lucky” Varela, D-Santa Fe, also an angler, asked former New Mexico Attorney General Gary King to weigh in on the issue of permission. King’s April 2014 opinion saying the public had a right to walk in streambeds without a landowner’s permission set off a firestorm. “There was no clarification of really key definitions within the legislation,” VeneKlasen said. Boaters should be as worried as anglers or waders about what the law means, he added, because “clearly, this law says if you are floating and touch anything on private land without written permission, including the streambed, you are trespassing.” Vigil, who is also an angler, says there are plenty of places to fish on the state’s public waters. “There’s no reason to have to cross people’s private property,” he said. And Welles, a guide and also a real estate agent who sells riverfront parcels, said if private property owners can’t restrict access, it could reduce the value of land some of them bought years ago thinking they had an exclusive right. Hayes, a river runner, said the problem is that privatizing any portion of a public water can end up making the entire river or stream off-limits for recreational use. “I see this bill as completely abandoning New Mexico’s public trust doctrine in respect to the waters of the state,” Hayes said. Albuquerque Rep. Bill Rehm, the sole Republican to vote against the bill in the House, said the bill puts law enforcement officers in an awkward position. “I could be fishing with a friend on the friend’s property, and if a game warden asks me if I have written permission and I don’t, the officer has to make a decision,” said Rehm, a retired police officer. “He could be discriminating and not cite, or do his job and cite.” “I think they need to bring the bill back and rewrite it,” Rehm said. In economic terms, outfitters and guides support the stream access bill as one that will help their ventures, while boat guides and others say the bill will hurt their recreational businesses. The legal issues around stream access are convoluted and complex, ones Kerkmans outlined in a 2012 article he wrote for the New Mexico State Bar newsletter. Some states base the public’s right to use a river or stream on whether it is “navigable” and a boat can float on it well enough to deliver goods from one place to another. New Mexico has taken a different view of the public’s rights, he wrote. Kerkmans notes the state constitution declares “the unappropriated water of every natural stream, perennial or torrential within the state of New Mexico” belongs to the public and can be put to beneficial use. The state Supreme Court’s decision in the 1945 Red River Valley case interpreted the constitution as giving the public the right to “float and wade in any stretch of stream that passes through private land, so long as the public has legal access,” Kerkmans wrote. In addition, “The small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks,” the state Supreme Court found. Kerkmans said he understands private property owner angst over the unfettered use of streambeds through their land. But he believes the law is clear that the public has the right to use those streambeds for now. “Absent a constitutional amendment or a new holding by the New Mexico Supreme Court overruling Red River Valley then, in New Mexico, all natural streams are public waters and the public will retain an easement over any private property those streams pass over regardless of any other title the Game Commissioner or Legislature tries to give to those waters,” he wrote in an email.