Supreme Court Issues Opinion on Right to Use Public Water Flowing Over Private Property
September 5, 2022
The Adobe Whitewater Club of New Mexico joined litigation partners the New Mexico Wildlife Federation and Backcountry Hunters and Anglers to sue for public stream access. For the Love of Rivers, our paddling club and partners petitioned the New Mexico Supreme Court in March 2020 to uphold New Mexico’s public stream access constitutional rights. The litigation has concluded. We won.
New Mexico’s highest court issued its unanimous 27-page opinion on September 1, six months (to the hour) after the court ruled from the bench following the March 1, 2022, oral arguments.
The introductory paragraph of New Mexico Supreme Court written opinion says, “the question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds beneath those waters. We conclude that it does.”
It ends, “we conclude the [State Game Commission] Regulations are an unconstitutional infringement on the public’s right to use public water and that the [State Game] Commission lacked the legislative authority to promulgate the Regulations. We hold the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment up such right.”
The Court’s news release explaining the written opinion and the Court’s reasoning is a great two-page summary. Please also review the petitioners’ joint news release. A celebration is in order!
The Adobe Whitewater Club’s September 13, 2022, monthly meeting program includes a summary of the litigation, its successful conclusion, and what appears to lie ahead.
RECREATION WINS
STATE GAME COMMISSION OFFENDING rule IS unconstitutional
River users have an Easement
On March 1, the New Mexico Supreme Court unanimously said the New Mexico Constitution grants recreational users of rivers and streams an easement where the water crosses private land
Victory report to members, March 3, 2022
After a one-hour hearing and 15 minutes of deliberation, New Mexico Supreme Court Chief Justice Vigil announced that all five New Mexico Supreme Court justices agreed that the issue is of “great public importance”, the Petitioners have standing, the Game Commission rule is unconstitutional, and all certificates issued to the privatizers are void. The Court will issue a writ of prohibitive mandamus to the State Game Commission. The State Game Commission called an emergency meeting immediately following the Court’s decision. It rescinded the offending 2018 privatization rule.
The Court voided the five river privatization certificates issued by the State Game Commission in the closing days of 2018 and the Susanna Martinez administration. Those certificates had authorized landowners’ closure of boatable sections of the Upper Rio Chama and the Upper Pecos River. On March 2, 2022, the Court issued this Order. Victory is ours in the case that will be known in history as Adobe Whitewater Club v State Game Commission.
The Supreme Court affirmed New Mexicans’ constitutional right to paddle all of New Mexico’s rivers and streams. They said the water in New Mexico’s rivers and streams belongs to the public. Paddlers have the right to travel these waterways unimpeded by private landowners. The Court said rivers are not for the exclusive benefit of private landowners. Rivers and public recreational users of the public water have an easement.
“Paddlers are very pleased that the New Mexico Supreme Court ruled that New Mexico’s rivers and streams are for the enjoyment of all. We look forward to removal of threatening signage and the hazardous river barricades that were erected to prevent travel down river,” said Sherry Barrett, Chair of New Mexico Paddlers Coalition. “Our rivers and streams are the lifeblood of New Mexico and will continue to be enjoyed by all New Mexicans and visitors to our state.”
“New Mexico’s rivers and streams are rare and precious resources that all New Mexicans are entitled to enjoy,” said Scott Carpenter, President of the Adobe Whitewater Club. “This access is part of New Mexico’s heritage. The NM Supreme Court unanimously ruled today that the public has a long-standing constitutional right to recreational uses of these rivers and streams. That right includes contact with the streambed and banks that is incidental to recreational use of the water. The court ruled it is unconstitutional for private landowners to fence the public out.”
“The NM Supreme Court ruled today that citizens and visitors from all walks of life have a constitutional right to recreational uses of New Mexico’s public waters, including New Mexico’s best natural fishing streams,” said Robert Levin, New Mexico State Director of the American Canoe Association. “A handful of landowners do not have the exclusive right to the recreational and economic benefits of public streams flowing across private property. They do not have the exclusive right to monetize public rivers.”
“In delivering the court’s decision, the Chief Justice Vigil started by indicating that this issue is in fact of great public importance, and he is right. New Mexico’s outdoor recreation economy supports 33,500 jobs and $1.2B of income. Today’s decision ensures that the residents and visitors of New Mexico can access the rivers that provide those recreational opportunities,” said Hattie Johnson, S. Rockies Stewardship Director for American Whitewater. “Paddlers from across the country travel to enjoy New Mexico’s unique and beautiful rivers and we are happy to see that their rights to do so are being upheld.”
“I’m thankful that the Game Commission rule will no longer be a barrier to our state’s policy of developing a robust river touring component to our outdoor recreation economy.” said Steve Harris, director of the New Mexico River Outfitters Association.
To see a copy of the Order of the New Mexico Supreme Court and all substantive litigation filings by all parties, please scroll down and click the links of interest.
The Adobe Whitewater Club thanks the New Mexico Wildlife Federation and Backcountry Hunters and Anglers, our great partners and co-petitioners; Joanna Prukop and Jeremy Vesbach, courageous Game Commission heroes fired by the Governor; several unsung heroes, the New Mexico Paddlers Coalition that includes the paddlers quoted above and that served as the paddlers steering committee, the New Mexico paddling community, and especially AWC members and donors. We are so pleased to have won this most recent public stream access victory for all! AWC, American Whitewater, and the New Mexico River Outfitters Association funded the paddlers’ share of litigation expenses.
We are especially grateful to our lawyers, Gene Gallegos and Seth Cohen. Their legal strategy was brilliant and successful, their briefing was superb, their oral arguments were decisive. They generously represented the Adobe Whitewater Club and our fellow Petitioners pro bono. Let’s make opportunities to give them some river time!
The purposes of the Adobe Whitewater Club of New Mexico are to:
promote river sports in New Mexico and elsewhere,
develop skills in river running,
support the preservation, protection, and improvement of rivers and river environments,
encourage the safe usage of our rivers by all, and
work for the continued availability of rivers for recreational uses.
New Mexico Supreme Court Oral Argument!
March 1, 2022 9:00am
The Adobe Whitewater Oral Argument is scheduled for Tuesday, March 1 at 9:00 am. There is no seating in the Supreme Court courtroom; however, there are two video overflow sites one in the Court of Appeals courtroom and the other in the Law Library. The Oral Argument will also be livestreamed for the public through the Supreme Court’s website at www.nmcourts.gov. On the left under NM Courts, click on Supreme Court. You will see a link saying “Click Here for Livestream of Supreme Court Oral Arguments.”
January 30, 2022 Update for Members:
New Mexico Supreme Court Stream Access Briefing Complete
Stream Access legal briefing is complete. The New Mexico Supreme Court will conduct a hearing with oral arguments presented by the parties and questions from the justices. Our lawyers said the March 1, at 9:00 am hearing will be streamed.
After the Petitioners Brief-in-Chief described previously, Respondent state Game Commission and the 23 Intervenor-Respondents filed two answer briefs.
Two revealing Game Commission answer brief quotations are followed by the conclusion:
The Commission … generally adopts the arguments and reasoning of Petitioners’ Brief in Chief.
The Commission generally agrees with the [Attorney General] Opinion that the Rule is in conflict with the New Mexico Constitution and statutory and case law.
The Commission respectfully requests that the Supreme Court issue an opinion on the Rule, and rule that the Regulation violates the State Constitution, so that the Commissioners could then hold a new rule making consistent with the Opinion.
The Intervenor-Respondents’ answer brief is painful to read.
The Petitioners’ reply brief skewers the false premises, assertations, and legal arguments of the Intervenors-Respondents. It concludes:
“Petitioners respectfully request that the Court issue the writ of mandamus, and strike down the Rule, invalidating all certifications already issued under the Rule to date. In doing so, Petitioners ask that the Court make explicit what has necessarily been the law for centuries: that the public’s right to use the public waters for fishing and recreation includes the incidental right to make reasonable use of the riverbeds and banks to the high-water mark.”
Perhaps we will get a favorable NM Supreme Court Opinion around the two-year anniversary of filing the Petition for A Writ of Mandamus.
New Mexico Supreme Court to Hear Oral Arguments at 9:00 am on March 1, 2022
Litigation Update for AWC Members - January 7, 2022
The New Mexico Supreme Court has turned its attention to the public stream access litigation brought by Petitioners the Adobe Whitewater Club of New Mexico, the New Mexico Wildlife Federation, and the New Mexico Chapter of Backcountry Hunters and Anglers in March 2020.
Oral arguments before the Supreme Court are scheduled for Tuesday, March 1, 2022, at 9:00 am. The hearing will be in person but with a very limited public audience. It will be streamed. We will post the link before the hearing.
The November 18, 2021, court order required a new “Petitioners’ brief-in-chief” that our lawyers submitted on December 20, 2021. Two “answer” briefs are required from Respondent State Game Commission and the 23 Intervenors-Respondents. The Intervenors are the privatizers, represented by the attorney who privatizers hired to start this fight almost 10 years ago. The answer briefs are due in late January. The Petitioners then have six days to file a reply brief.
On November 9, just prior to this court order, the Supreme Court formally rejected the privatizers’ specious claim that the Petitioners submitted a forged exhibit.
The Petitioners’ brief-in-chief is an excellent, very readable summary of the law and legal precedents that pertain to the current stream access litigation. We urge you to read it. We are very fortunate to have such dedicated and highly qualified attorneys representing us and our public stream access rights.
On August 12, 2021, the Game Commission met in an open public meeting to consider five additional privatization applications. Each application was denied by separate unanimous votes of the Game Commission. The Game Commission was forced to decide these applications while our litigation is pending because the privatizers’ attorney had obtained a federal court order requiring them to do so.
The Game Commission members said in denying the applications that the privatization rule passed by the Martinez administration’s Game Commission was unconstitutional. We hope the Game Commission’s answer brief will repeat that position and will ask the Supreme Court to settle the constitutional dispute. Does the New Mexico constitution provide the public with a right to access public waters, including the bed and banks, if that access does not require trespass across private property to reach the public waters?
The five privatization applications approved by the Martinez administration Game Commission remain in place. Two of the applicants have constructed barriers on the Pecos River and the Rio Chama.
Scroll down to see earlier postings as this lawsuit has progressed. The November 2021 order was issued 18 months after the June 2020 order that followed the initial briefings. The June 2020 order dismissed the Governor as a Respondent and added the 23 private parties as Intervenors-Respondents.
This litigation began when lawyers Gene Gallegos and Seth Cohen representing the Adobe Whitewater Club of New Mexico and the New Mexico Wildlife Federation and the Backcountry Hunters and Anglers in March 2020 filed a Petition to the New Mexico Supreme Court for a Writ of Mandamus naming the Game Commission and the Governor as Respondents.
New Mexico Game and Fish Commission Meets June 18, 2021
Hearing starting 9:00am re: Five Pending Non-Navigable Applications !!!
Adobe Whitewater club written comments (large file with photos)
A hearing and final decision on the five pending applications to privatize rivers will be the first substantive item after general public comments on the June 18th agenda. (See meeting announcement & agenda here.) The Adobe Whitewater Club has asked to testify despite the unfair rule that prohibits oral comment at this hearing. Click here to see our motion filed by our attorneys.
The deadline for public comment was June 4th.
The applications to privatize can be found on the NMGF Proposals Under Consideration page and include:
Rancho Del Oso Pardo, Inc., (Rio Chama upstream from Chama)
River Bend Ranch, LLC (Upper Pecos River real estate development)
Chama II, LLC, dba Canones Creek Ranch (Rio Chama downstream from Chama)
Fenn Farm Ranch (Rio Penasco, SE New Mexico)
Three Rivers Cattle Ltd. Co (intermittent Three Rivers and Indian Creek in Lincoln and Otero counties)
Following are public stream access written comments from our larger team.
Adobe Whitewater Club written comments (large file with images)
Exceptional letter by Joanna Prukop, former Chair of NM State Game Commission
Motion filed by our attorneys re our interests in current proceedings
Also see: “Heinrich urges repeal of limited waterway access” Santa Fe New Mexican, Jun 5, 2021
HJR5 and HJR8 Update !
The HENR Committee just voted to table House Joint Resolutions 5 and 8, which means they will not move forward. This is an excellent outcome and was due to the presentations by members of AWC, the New Mexico Paddlers Coalition, and New Mexico River Outfitters Association, as well as New Mexico Wildlife Federation, Sierra Club, Wild Earth Guardians and New Mexico Wild.
Thanks also to all of you who submitted emails, texts and letters to the Committee Members before the hearing - your support made a difference.
One Page Fact Sheet Sent to Legislators
Please do not pass HJR5 and HJR8 in HENRC
HJR5 and HJR8 would jeopardize recreationalists’ constitutional stream access rights. The resolutions’ constitutional right to hunt/fish camouflages the real intent: legally enshrining private property rights in the New Mexico Constitution to override the public’s constitutional stream access rights.
The new Administration suspended the Game Commission process to review and approve new privatization applications. Sportsmen and women and river recreationists petitioned the NM Supreme Court to once again enforce the public’s fundamental constitutional right to enjoy the State’s public rivers. The law and precedent are clear. The Supreme Court’s ruling is pending.
New barricades were erected on two of New Mexico’s classic rivers after the Martinez Administration State Game Commission issued illegal privatization rules and non-navigable certificates. The barricade illustrated is on the upper Pecos River, built and posted by the absentee Texas landowner’s trust. A new steel cable blocks the Rio Chama below the Village of Chama. Both rivers are popular with boaters and are listed in the 1983 State Parks Division New Mexico Whitewater guidebook that promoted public use of New Mexico’s rivers.
The fact is that the wealthy landowners cannot privatize New Mexico’s rivers under our current Constitution. They know the law is not on their side. So, they want to change it. You cannot let them. You cannot allow this effort that would divest New Mexicans of their long-cherished rights to use and enjoy our rivers.
The fundamental question here is: Will New Mexico’s rivers and streams remain free and open to the public or, where they pass through private lands, will they be subject to a patchwork of fencing and closures, limiting use and enjoyment to a fortunate few? This is what is at stake.
ACTION ALERT:
BOATERS STREAM ACCESS THREATENED BY HJR 5 AND HJR 8.
SEND LEGISLATORS AN E-MAIL BEFORE FEBRUARY 16, to REJECT
Thirty New Mexico State Representatives have introduced two resolutions asking voters to amend Section II of the state Constitution (“New Mexico’s Bill of Rights”). Both resolutions ask voters to approve elevating hunting and fishing into constitutional rights. Its title “Protecting the Right to Hunt, Fish and Harvest Wildlife” would be more accurately described as “Protecting Property Rights over your Right to Hunt, Fish, or Float.” These ballot initiatives are designed to preempt stream access rights litigation currently being considered by the NM Supreme Court.
House Joint Resolutions 5 and 8 are scheduled for a hearing in the House Energy, Environment and Natural Resources Committee on Tuesday February 16. We’re calling on Adobe Whitewater Club members and all paddlers to urge the committee to reject the resolutions.
To be clear, the “right to hunt and fish” is window-dressing meant to disguise and/or distract from the real meat of what these bills do: put private property rights ahead of public constitutional rights.
Today, barricades block our freedom to float through sections of NM public rivers and streams. HJM 5/8 proponents are in the process of taking our public waters, through State Game Commission rules and non-navigable certificates - privatization. The Resolution would change the state constitution to make such barricades legal. It would effectively authorize the privatization of streams throughout the state.
The Adobe Whitewater Club of New Mexico, with two sportsmen groups have petitioned the NM Supreme Court to find State Game Commission rules and privatization certificates unconstitutional. While paddlers and other recreationalist sue, the privatizers seek to change the constitution.
You can best help defeat these intentionally misleading resolutions by sending a very short email to committee members before the hearing.
The table below provides the email addresses for the Committee Members. The subject line should ask the Committee Member to vote no on HJR5/8. One or two lines in the email body can summarize why.
Contact Information: House Energy, Environment and Natural Resources Committee (HENRC)
A large volume of e-mail messages in each member’s in-box is our most effective way to ensure a desirable outcome. If you can, also virtually attend the committee meeting: go to nmlegis.gov ,click on “webcast” and select “House Energy, Environment, and Natural Resources Committee”.
Possible messages for the Committee Members:
HJR 5/8 would adversely affect my ability to paddle New Mexico rivers
The Resolutions would change the state constitution to make barricades across rivers legal.
The Resolutions would effectively authorize the privatization of streams throughout the state.
Protect our right to boat.
Summary
In 2018 the State Game Commission issued a rule that allows banning public access from New Mexico’s “non-navigable public waters" running through private land.
In the last days of 2018, the State Game Commission issued “non-navigable certificates” with official “No Trespassing” signs to five properties on New Mexico rivers and streams. The successful applicants claimed all New Mexico rivers and streams are “non-navigable.”
In March 2020 the AWC joined with New Mexico Wildlife Federation and Backcountry Hunters and Anglers to petition the New Mexico Supreme Court to overturn the rule and the certificates. The petition and other AWC motions describe why the rule and certificates violate the New Mexico constitution.
The Adobe Whitewater Club appreciates the financial support and active participation of American Whitewater and the New Mexico River Outfitters Association to protect public stream access in New Mexico.
We are committed to keeping legal expenses as low as possible. Your donation to AWC will make a big difference!
Current Events & Press Releases
Update: Stream Access Legal Action—Privatizer Attorney Falsely Alleges Fraud Against Stream Access Advocates, November 11, 2020
The Adobe Whitewater Club of New Mexico wants to keep its members informed regarding the stream access legal action it took on March 13, 2020, to ask the New Mexico Supreme Court to overturn the privatization rule and certificates as counter to the State Constitution. The case awaits substantive action by the New Mexico Supreme Court, which accepted the case and all motions on June 22. Briefing was concluded in May.
Most recently, on September 29, 2020, the Additional Respondents, which is the legal name for the stream privatizers, new applicants and intervenors, alleged the Petitioners, which include the Adobe Whitewater Club, committed a fraud on the court by submitting a falsified exhibit. That matter is now fully briefed.
Their case was a ploy as you will see from the summary below. The legal filings are hyperlinked if you want to follow the privatizers assertion and the three legal responses that basically said they made it up and their assertion is false.
The Additional Respondents (stream privatizers) attorney recently attempted to get the case dismissed by alleging the Petitioners had fraudulently falsified an exhibit submitted as part of the March 2020 Petition to the New Mexico Supreme Court. The motion-to-strike asked for the facts to be tried in a NM District Court.
The Petitioners, which include the Adobe Whitewater Club, responded with the facts, which showed the allegation was entirely false.
Senators Heinrich and Udall, as amici, responded saying their earlier brief did not rely on the disputed document.
Respondent NM State Game Commission, with the Attorney General Office’s signature, said the claim is false. There was and is no fraud.
This illustrates just how serious a threat privatization poses to our rights to access public waters.
Stream Access Litigation — Triggering Actions and a Brief History, October 2020
AWC Sues for Public Stream Access
The Adobe Whitewater Club, Backcountry Hunters and Anglers and the New Mexico Wildlife Federation sued in March 2020 to overturn the unconstitutional rule and certificates approved by the State Game Commission for private property owners to deny public access to rivers running through their private property. We petitioned the New Mexico Supreme Court seeking a Writ of Mandamus to overturn the illegal actions.
Brief History
In the last days of December 2017, the New Mexico State Game Commission passed a rule that allows privatization of segments of public rivers running through private land. In November 2018, three landowners were granted certificates of nonnavagability to privatize segments of five public rivers and streams running through private property. Segments of the Pecos River and the Rio Chama recommended in the New Mexico State Parks Division 1983 whitewater guide now are barricaded and posted. The Pecos River barricade, on property owned by a wealthy Texas oil man’s trust, is a formidable, impassible life-safety hazard. The harsh sign adjacent to the Hersh’s barricade prohibits entry by watercraft. The official, state-approved and mandated sign (yellow) also suggests that operation of watercraft may be among the prohibited stream uses.
The New Mexico Wildlife Federation reached out to paddlers in summer 2019 asking for active involvement to protect stream access rights. Paddlers expanded a public stream access discussion group the Adobe Whitewater Club had formed earlier and sought allies.
State Game Commission
Governor Michelle Lujan Grisham replaced all the Game Commissioners in 2019. At the July Game Commission meeting, the Commission placed a moratorium on new applications to privatize non-navigable stream segments. Game Commission chair Joanna Prukop announced at its November 2019 meeting that the Game Commission would reopen the privatization rule.
In response to Prukop’s direct question, Department of Game and Fish Director Michael Sloane, a long-term state employee, stated Game and Fish Dept staff had nothing to do with preparing or reviewing the privatization rule approved by the Game Commission. This suggests that the rule was drafted by the attorney for private landowners with certificates and pending applications. The attorney, who also is a registered lobbyist and makes major campaign contributions, testified and lobbied for the 2015 bill that passed in gutted form. Nevertheless it spawned the river privatization rule that presumed authority that the law did not grant. The rule was quickly followed by five applications and the granting of "certificates of nonnavigability” to the attorney’s clients. Many additional applications are pending.
Chair Prukop’s term expired at the end of December 2019. Prukop is a highly qualified and well respected professional and was appointed as chair by the Governor. Prukop believes that she was refused a new term due to her stream access stance. The Governor appointed Roberta Salazar-Hickey, a LANL lawyer with no wildlife credentials, to Prokup’s seat. Salazar-Hickey was then elected by her fellow commissioners as the new State Game Commission chair.
Litigation
The Department of Game and Fish Director represented by the Governor’s chief counsel, which is highly unusual, sued the Game Commission, represented by the Attorney General, in New Mexico district court, seeking reconciliation of conflicting direction.
The Adobe Whitewater Club of New Mexico with the New Mexico Wildlife Federation and the Backcountry Hunters and Anglers then filed a Petition to the New Mexico Supreme Court for a Writ of Mandamus with the Game Commission and the Governor as Respondents.
The Modrall, Sperling Law Firm filed a motion with the NM Supreme Court on behalf of current certificate holders, pending certificate holders and numerous private land interests to be added as Respondents to the Petition. The attorney also filed suit in Santa Fe state district court on behalf of three Texas entities with pending privatization applications. Additionally, the attorney sued in Roswell state district court for additional applicants on small or dry streams in southern New Mexico. The firm’s attorney threatens an immense wave of litigation.
Senators Heinrich and Udall filed a joint amicus brief, as did New Mexico Wilderness Alliance, League of United Latin American Citizens, The Hispano Roundtable of New Mexico, Hispanics Enjoying Camping, Hunting, and the Outdoors and the Nuestra Tierra Conservation Project; both briefs are supportive of the paddlers’ and anglers’ positions. The Petitioners’ consolidated reply brief presents the Petitioners’ legal arguments. It is a must-read.
On June 22, 2020, the NM Supreme Court issued an order that accepted all briefs, motions and intervention requests and dismissed the Governor as a Respondent. The first page of this four-page order lists the litigation parties resulting from the NM Supreme Court’s order.
The timing and substance of next steps by the NM Supreme Court remain unknown.