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NM Supreme Court sides with recreation groups in stream access case

Mar. 1—The New Mexico Supreme Court on Tuesday agreed that a Game Commission rule which had allowed landowners to restrict access to water flowing through private property is unconstitutional.

The ruling in the stream access case represents a victory for kayaking and fishing groups seeking to preserve public access to the state's waterways, and a defeat for landowners who saw the rule as key to protecting private property rights.

Chief Justice Michael Vigil said the court unanimously agreed that the rule is contrary to a "constitutional reading" of a 2015 state law.

The previous state Game Commission had used that law to issue five non-navigable water certificates to northern New Mexico landowners — some of whom posted signs and built fences through the waterways.

"The court will order an issuance of order declaring that the certificates issued pursuant to the rule are void," Vigil said.

Justices reached a unanimous decision after 15 minutes of deliberation and an hour of oral arguments from attorneys.

Seth Cohen, an attorney for the rafting and fishing groups that sought to overturn the rule, said "the public's constitutional right to make recreational use of the public water includes an incidental right" to touch streambeds or riverbanks.

Several ranchers and landowner groups had argued that the rule should stand as a way to prevent trespass and preserve sensitive streambeds.

The rule had provided clarity as to what authority landowners and law enforcement had to protect private property, said attorney Jeremy Harrison.

"This isn't limited just to flyfishing," Harrison said. "The right that the petitioners are seeking is a broad recreational right."

Justice Shannon Bacon took issue with the landowner arguments about limits to the public's right to use water.

"If you can't walk on the streambed, and your use and enjoyment protected by the constitution is ... your ability to fly fish — unless you can figure out how we can all walk on water, how is that not contrary to the use and enjoyment of the public?" Bacon said.

Game Commission attorney Aaron Wolf told the court that the current commission had no intention of using the rule, as the panel demonstrated last summer when it rejected five additional landowner applications for non-navigable waterway certificates.

"This whole process has exploded in the face of the commissioners," Wolf said of the several resignations and removals on the board because of the stream access debate.

Vigil said the court will soon issue a full opinion outlining reasoning for the ruling.

Theresa Davis is a Report for America corps member covering water and the environment for the Albuquerque Journal.