March 04, 2022
By Fly Fisherman Staff
The New Mexico Supreme Court unanimously ruled this week that previously established private-land non-navigable certifications banning public usage on streams and rivers that flow across private land are unconstitutional, opening up miles of rivers for fishing and other recreation. This win for stream access comes after years of arguments from stream-access advocates in favor of New Mexico’s 1907 declaration that all waters “belong to the public and are subject to appropriation for beneficial use.”
A coalition of public-land and public-access advocates, including the New Mexico Chapter of Backcountry Hunters and Anglers and the New Mexico Wildlife Federation, sued the State Game Commission and Gov. Michelle Lujan Grisham in 2020 seeking the annulment of a Commission rule that allowed individuals to obtain “certificates of non-navigability.” The rule legally allowed landowners to prohibit public access on rivers and streams and post it as such.
“It is nearly impossible for most stretches of most rivers in New Mexico for the public to enjoy that public use right guaranteed in the constitution with the rule in effect,” Seth Cohen, an attorney for the petitioners, urged in court proceedings.
New Mexico has had a see-saw history of stream access. In 1945, the state Supreme Court ruled that the public has the right to use public waters for recreation, but in recent decades, private-land rights ruled the rivers. In 2014, a faction of private-land owners backed legislation that enacted the “certificate” law. This ruling nullifies those certificates and that law.
Privatization advocates will undoubtedly challenge the ruling.
The mountainous sections of New Mexico are a paradise of small-stream trout angling. It is also home to the stunning Rio Grande Gorge and the world-famous San Juan River tailwater trout factory.
Stream access must still be gained by way of public land or access, similar to the landmark law established in Montana in 1984.
“We urge the public to recreate thoughtfully while the line between private property rights and the public’s water are further delineated,” Joel Gay, New Mexico Backcountry Hunters & Anglers Policy Chair, said. “Our chapter thanks the state Supreme Court for setting the record straight – again.”